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WOMAN  AND  THE  LAW 


WOMAN 
AND  THE  LAW 


1/3 


BY 


GEORGE  JAMES  BAYLES,  Ph.D. 

PRIZE    LECTURER    IN    THE    SCHOOL    OP    POLITICAL   SCIENCE 
COLUMBIA   UNIVERSITY 


WITH  AN   INTRODUCTION  BY 

PROFESSOR  I.  F.  RUSSELL 


NEW  YORK 

THE  CENTURY  CO. 

1901 


Copyright,  1901,  by 
The  Century  Co. 

Pullished  October,  1901 


The  DeVinne  Press. 


PREFACE 

THIS  work  is  designed  to  serve  the  pur- 
poses of  a  general  view  of  the  legal  con- 
dition of  the  women  of  the  United  States  at 
the  present  time,  and  is  more  especially  for 
the  reading  of  women.  It  is  a  general  state- 
ment and  not  an  exhaustive  analysis ;  it  is  not 
designed  for  the  practising  lawyer,  man  or 
woman,  for  though  it  deals  with  legal  prin- 
ciples, it  does  not  apply  them  to  concrete 
cases ;  and  least  of  all  is  it  an  attempt  to  make 
every  woman  her  own  lawyer. 

American  women,  whether  studying  alone 
or  in  clubs,  are  coming  more  and  more  to  take 
an  appreciative  interest  in  the  sociological 
development  of  the  nation,  and  naturally  a 
subject  to  engage  their  attention  is  the  con- 
dition of  their  fellow-women  viewed  from 
all  standpoints.  Perhaps  the  most  difficult 
branch  of  the  general  subject  to  be  handled 
by  women  in  a  comprehensive  way  is  the  pos- 
itive law,  both  because  the  material  is  not 
easily  accessible  and  because  some  experi- 
ence is  needed  to  make  use  of  the  material 
when  found.  A  law  library  is  both  a 
mine    of    raw    material    and    a    laboratoiy 


vi  PREFACE 

for  the  work  of  analysis  and  comparison, 
but  unless  one  knows  what  to  expect  and 
how  to  look  for  it,  such  a  library  seems 
nothing  more  than  an  accumulation  of  tire- 
some volumes.  Within  these  dreary-looking 
books,  however,  is  written  a  large  portion 
of  the  life  history  of  the  nation.  Read  into 
the  laws  the  efforts  and  hopes  of  generations 
of  earnest  men  and  women,  and  the  study  be- 
comes one  of  living  organism— human 
society. 

The  subject-matter  that  is  here  dealt  with 
is  divided  into  three  parts:  domestic  rela- 
tions, which  are  of  the  greatest  importance 
to  every  woman;  property  relations;  and 
what  have  been  designated  as  public  rela- 
tions. The  domestic  relations  show,  first,  the 
elements  of  social  integration— that  is,  the 
institution  of  marriage  and  the  family,— and 
then  the  elements  of  disintegration,  the  sep- 
aration of  husband  and  wife  and  divorce. 
The  property  relations  are  the  most  difficult 
to  describe  in  general  statements,  but  they 
are  well  worth  study,  for  they  reveal  the  de- 
velopment in  the  legal  individuality  of  wo- 
man. The  public  relations,  on  the  other  hand, 
are  much  more  simple,  and  have  the  value  of 
showing  the  political  status  of  women  in  the 
modern  state. 

While  every  effort  at  accuracy  has  been 
made,  errors  there  probably  are,  more  likely 


PREFACE  vii 

in  the  statute  law  resulting  from  amendments 
by  implication.  If,  however,  in  the  course  of 
careful  study  such  errors  are  discovered,  one 
of  the  main  objects  of  this  small  work  will 
have  been  accomplished,  for  there  will  have 
been  more  study  by  American  women  of  their 
legal  condition. 

G.  J.  B. 

Columbia  University, 

New  York,  May,  1901. 


CONTENTS 


PAGE 

Preface     ..." v 

Introduction xi 


Part  I 

DOMESTIC  RELATIONS 

The  Contract  to  Marry 3 

Marriage         7 

Plural  Marriages  of  the  Mormons     ...    24 

Husband  and  Wife 28 

Torts  of  a  Personal  Nature 34 

The  Right  of  a  Wife  to  Support  ....    40 
The  Guardianship  of  Children       ....    45 

The  Adoption  of  Children 50 

Divorce 55 

Limited  Divorce 105 

Divorces  among  the  Mormons 109 

Alimony 113 

Change  of  Name  after  Divorce      ....  116 
Uniform  Divorce  Law 117 

Paet  II 

PROPERTY  RELATIONS 

Marriage  Settlements 123 

Dower 128 

A  Married  Woman's  Separate  Estate       ,      .  143 
ix 


X  CONTENTS 

PAGE 

The  Property  Rights  of  Married  Women      .  159 
The  Contracts  op  Married  Women      .      .      .  200 

Deeds  by  Married  Women 210 

Wills  by  Married  Women 217 

Married  Women  as  Sole  Traders  ....  219 
Women  and  the  Homestead  Laws  ....  228 


Part  III 
PUBLIC   RELATIONS 

Citizen  Women 237 

Alien  Women 241 

Woman  Suffrage 246 

Women  as  Attorneys 249 

Married  Women  as  Witnesses 252 

The  Employment  of  Women 257 

The  Protection  op  Women 261 

Table  op  Statutes    268 

Index 271 


THE   STUDY  OF  LAW  FOR  WOMEN 

THE  non-professional  study  of  the  law  is 
not  altogether  a  new  thing.  Sir  William 
Blackstone,whose  Commentaries  are  soworld- 
famed  that  the  name  of  the  author  easily 
passes  as  a  synonym  for  the  law  itself,  lec- 
tured not  to  i^trofessional  aspirants  at  the 
Inns  of  Court  in  London,  but  to  the  gen- 
tlemen of  England  who  were  undergraduates 
at  Oxford,  and  who  had  little  thought,  per- 
haps, of  a  career  at  the  bar.  Similarly, 
Chancellor  Kent  read  his  immortal  Lectures 
not  at  the  School  of  Law,  but  under  the  Fac- 
ulty of  Arts  at  Columbia  College  in  New  York 
City. 

The  place  of  law  in  a  schedule  of  studies 
framed  with  a  view  to  a  polite  and  general 
culture  has  been  nobly  exhibited  by  Black- 
stone  in  his  introductory  lecture.  But  what 
was  true  a  century  and  a  half  ago  of  England 
under  the  rule  of  its  landed  gentry,  is  doubly 
true  of  America,  with  its  more  popular  in- 
stitutions of  government  and  its  traditions  of 
equality  before  the  law. 

The  law  is  stubbornly  viewed  by  the  lay 
public  as  a  body  of  rules  regulating  the  pro- 


xii  THE  STUDY  OF  LAW  FOR  WOMEN 

cedure  and  sittings  of  courts,  the  language 
of  written  instruments,  and  the  order  of 
judicial  inquiry  and  determination,  thus  pre- 
senting a  most  uninviting  field  for  explor- 
ation. The  substantive  law,  so  called,  the 
law  of  primaiy  rights,  as  distinguished  from 
practice  and  remedial  justice,  is  too  often 
hidden  deep  down  under  a  weight  of  forms 
and  technicalities,  and  sustains  a  terrible 
burden  of  pedantic  erudition  and  recondite 
and  mystic  learning,  bewildering  and  dis- 
heartening to  the  student.  Women  especially 
have  no  interest  in  a  mere  war  of  words. 
But  when  once  the  law  properly  appears  in 
its  scientific  and  philosophical  relations,  as 
akin  to  ethics,  as  affecting  conduct,  as  in- 
culcating a  lofty  morality  and  exhibiting  a 
noble  standard  of  right,  as  teaching  us  to  look 
into  the  face  and  hear  the  voice  of  God,  then 
the  dignity  and  the  nobility,  or  we  may  even 
say  the  divine  nature,  of  jurisprudence 
evokes  the  reverent  contemplation  of  all  in- 
telligent men  and  women.  We  must  there- 
fore contend  that  some  considerable  know- 
ledge of  the  law  should  be  sought  by  every 
human  being  who  aspires  to  real  education. 
A  common  fallacy  regarding  the  law  is 
that  it  issues  as  a  perfect  product  from  some 
legislative  hall,  and  is  imposed  upon  a  sub- 
ject people  by  external  authority.  The  truth 
is,  however,  that  it  has  its  origin  in  the  neces- 


THE  STUDY  OF  LAW  FOR  WOMEN  xiii 

sities  of  mankind,  and  its  first  authoritative 
expression  in  some  judicial  decision;  it  is 
never  finished  and  ideal,  but  always  seeking 
a  higher  perfection;  and  finally,  under  the 
free  jjolitical  institutions  of  our  western 
world,  it  is  never  imposed  by  the  arms  of  a 
conqueror,  but  always  enacted  by  the  vol- 
untary action  of  the  people. 

The  range  and  variety  of  legal  rules  are 
limited  only  by  the  activities  and  relations 
of  human  society.  The  law  has  its  message 
of  authority,  its  sharp  rebuke,  its  word  of 
counsel,  its  threatened  vengeance,  as  well  as 
its  bulwarks  of  defense,  its  munificent  endow- 
ments, and  its  inalienable  rights;  and  these 
must  be  read  by  the  intelligent  citizen  be- 
tween the  lines  of  history,  romance,  and  finan- 
cial quotations,  and  should  be  seen  in  all  the 
encounters  of  violence  and  crime,  the  in- 
trigues of  passion,  and  the  battles  of  markets 
and  exchanges.  The  bride  at  the  altar,  the 
widow  in  her  quarantine,  and  the  babe  un- 
born are  all  within  the  merciful  protection 
of  the  law.  The  desperate  may  not  take  his 
own  life,  the  gambler  may  not  stake  his  lib- 
erty, and  the  prodigal  may  not  waste  his  in- 
heritance. 

The  leadership  of  America  in  matters  alike 
of  money,  mind,  and  morals  may  be  ascribed 
in  large  part  to  the  influence  of  her  women. 
In  the  Eastern  countries  at  the  present  time, 


xiv  THE  STUDY  OF  LAW  FOR  WOMEN 

and  in  primitive  antiquity  everywhere,  we 
find  woman  in  the  position  of  a  slave  and 
household  drudge.  Even  to-day  the  German 
Emperor  is  said  to  limit  woman's  si)here  to 
the  kitchen,  the  nursery,  and  the  church ;  and 
the  divorce  law  of  England  at  the  present 
time  has  one  rule  of  right  conduct  for  a  man 
and  quite  another  rule  for  his  wife. 

But  in  the  United  States  the  law  has 
reached  that  lofty  elevation  of  ethical  senti- 
ment which  enables  it  to  announce  that  jus- 
tice knows  no  distinction  of  sex.  In  this 
country,  a])art  from  voting  and  holding  office, 
woman  labors  under  no  legal  disabilities. 
A  wife's  control  of  her  real  property  is 
greater  than  her  husband 's  control  of  his ;  for 
the  statutes  of  New  York  and  many  other 
States  forbid  a  man  to  dispose  of  his  lands 
and  tenements,  by  deed  or  will,  in  disregard  of 
his  wife's  right  of  dower,  whereas  the  fullest 
liberty  of  transfer  is  enjoyed  by  the  married 
woman.  Moreover,  husbands  and  fathers 
seem  to  covet,  if  not  for  their  wives,  most 
certainly  for  their  daughters,  the  fullest 
measure  of  immunity  from  masculine  inter- 
ference and  domination.  Tendencies  appar- 
ently irresistible  are  making  for  the  exten- 
sion of  these  rights  throughout  all  the  centers 
of  civilization.  The  just  and  safe  endow- 
ment of  widows  and  ori)hans,  and  the  protec- 
tion of  inherited  estates  from  the  rapacious 


THE  STUDY  OF  LAW  FOR  WOMEN  xv 

raids  of  greedy  creditors  and  unscrupulous 
attorneys,  necessitate  the  financial  indepen- 
dence of  woman,  whether  maid  or  matron, 
r^  The  education  of  woman  must  be  commen- 
surate with  the  splendor  of  her  new  heritage 
(of  rights  and  responsibilities,  and  should  be 
(such  as  to  qualify  her  for  the  duties  of  ex- 
ecutor, guardian,  and  trustee,  as  well  as  for 
'the  responsibilities  of  the  ownership  of  lands 
!  or  the  stocks  and  bonds  of  incor]Dorated  com- 
panies. 

Woman  is  thus  in  need  of  instruction  in 
the  law,  not  to  enable  her  to  be  her  own 
lawyer,  but  to  qualify  her  to  appreciate  and 
act  upon  legal  counsel  understandingly.  If 
she  is  to  continue  to  figure  as  a  capitalist,  tax- 
payer, litigant,  and,  perhaps,  voter,  on  a  more 
and  more  liberal  scale,  she  ought  certainly  to 
make  herself  master  of  the  rudiments  of  legal 
science. 

I.  F.  R. 

New  York  University  Law  School, 
June  10,  1901. 


Paet  I 
DOMESTIC  RELATIONS 


WOMA]S^  AND  THE  LAW 


THE  CONTRACT  TO  MARRY 

THIS  contract  is  in  its  nature  a  mutual 
agreement  between  a  man  and  a  woman 
to  marry  each  other  or  to  become  husband 
and  wife  at  a  future  time,  and  must  satisfy 
all  the  legal  requirements  the  same  as  other 
contracts.  When  a  man  and  a  woman  have 
promised  to  marry  each  other  and  one  of 
them  refuses  to  carry  out  the  agreement,  the 
other  may  bring  a  suit  for  damages,  as  in 
the  case  of  other  contracts. 

To  sustain  such  a  suit,  however,  there  must 
\have  been  a  definite  offer  of  marriage,  or  a 
I  promise  to  marry,  by  one  party  that  has  been 
<  made  known  to  the  other.    A  mere  intention 
\  to  marry  communicated  to  third  persons  not 
I  in  the  presence  of  the  other  party  is  no  otf  er 
kor  promise  at  all.     Such  a  valid  offer  may, 
however,  be  made  through  a  friend  or  an 
agent.     No  express   form  of  words  is   re- 
quired, as  it  need  only  appear  that  both  the 


4  WOMAN  AND   THE  LAW 

man  and  the  woman  understood  it  to  be  an 
offer  of  marriage. 

Another  essential  feature  of  this  contract 
is  that  tliere  is  a  definite  acceptance  of  the 
offer  or  promise.  The  acceptance,  like  the 
offer,  may  be  made  through  a  third  person, 
and  need  not  be  in  express  words,  but  may 
be  inferred  from  the  conduct  of  the  one  who 
accepts  the  offer  or  promise.  It  must  ap- 
pear that  the  acceptance  was  made  known 
to  the  other  party,  and  that  it  was  made 
within  a  reasonable  time  after  the  offer  was 
made.  The  promise  of  a  man  to  marry  a 
(woman  "if  he  married  any  one"  has  been 
held  void  both  because  it  is  too  indefinite  and 
because  it  operates  virtually  as  a  restraint 
I  upon  marriage,  and  is  for  that  reason  against 
( the  public  policy. 

If  the  parties  to  a  contract  to  marry  do 
not  themselves  make  the  contract  definite  as 
to  time  and  place,  the  law  in  a  suit  for  breach 
of  promise  will  presume  that  a  promise  to 
marry  is  a  promise  to  marry  within  a  rea- 
sonable time  and  at  the  residence  of  the 
woman.  The  consideration  in  a  contract  of 
this  kind  is  the  mutual  promise.  There  may, 
however,  be  some  otlier  consideration,  in  ad- 
dition, which  will  neither  add  to  nor  detract 
from  the  validity  of  the  contract,  unless  such 
a  consideration  is  immoral  in  its  nature. 

This  contract  must  be  made  between  com- 


THE  CONTRACT  TO  MARRY  5 

petent  parties,  as  will  be  seen  in  the  consid- 
eration of  marriage,  and  in  order  to  bind 
himself  by  a  promise  of  marriage  the  person 
must  be  capable  both  of  making  a  binding 
contract  and  of  entering  into  a  valid  and 
legal  marriage.  Thus,  a  minor  who  is 
not  capable  of  making  ordinary  contracts, 
though  he  is  old  enough  to  marry,  is  not 
bound  by  a  promise  of  marriage.  The  fact 
that  a  party  has  already  promised  to  marry 
some  one— that  is,  is  engaged  to  be  married 
—does  not  affect  his  capacity  to  promise  to 
marry  some  one  else. 

r  The  use  of  any  form  of  force,  or  any  con- 
cealment with  intent  to  deceive,  or  any  false 
representations  may  invalidate  contracts  to 
(marry  just  as  they  may  invalidate  other  con- 
[  tracts.  So  a  promise  to  marry  made  at  the 
point  of  a  pistol  or  to  get  away  from  actual 
confinement  cannot  be  made  a  ground  for 
damages.  While  a  woman  is  not  bound  to  dis- 
close anything  concerning  herself,  except  her 
previous  unchastity  or  her  physical  unfitness 
for  marriage,  yet  any  false  representations 
made  by  her,  or  on  her  behalf  with  her  know- 
ledge, for  the  purpose  of  deceiving  the  man, 
will  constitute  a  fraud,  and  the  man's  prom- 
ise is  not  binding,  whether  such  false  repre- 
sentations relate  to  the  woman's  social  posi- 
tion and  fortune  or  to  her  character. 

It  is  not  possible  to  bring  a  suit  for  the 


6  WOMAN  AND   THE  LAW 

siDecific  performance  of  a  contract  to  marry, 
but  an  action  for  damages  will  lie  for  a 
breach  of  such  a  contract.  Such  an  action 
is  allowed  by  the  coiiimon  law  independently 
of  statute,  and  it  may  be  brought  either  by 
a  man  or  a  woman.  In  such  actions,  based 
upon  a  breach  of  promise  to  marry,  the  dam- 
ages have  not  been  limited  by  the  courts  to 
the  general  rules  governing  actions  upon 
simple  contracts  for  the  payment  of  money, 
but  rest  with  the  discretion  of  the  jury  con- 
sidering the  circumstances  of  each  particular 
case. 


MARRIAGE 

PERHAPS  the  best  general  definition  of 
marriage  is  that  it  is  the  legal  status  or 
condition  of  husbands  and  wives.  It  denotes 
the  legal  conditions  under  which  a  man  and 
a  woman  may  lawfully  cohabit  and  have  le- 
gitimate children.  Marriage  is  constantly 
referred  to  in  American  legislation  as  a  civil 
contract;  but,  strictly  speaking,  marriage  is 
not  a  contract,  nor  is  the  relation  of  husband 
and  wife  a  contractual  relation,  although 
there  are  many  contracts  that  are  connected 
with  the  marriage  relation.  Where  this 
phrase  ''civil  contract"  is  used  the  design 
is  to  place  the  emphasis  upon  the  word  civil, 
and  not  upon  the  word  contract,  in  order  to 
denote  the  fact  that  under  modern  law  mar- 
riage is  not  controlled  by  the  canonical  pro- 
visions of  ecclesiastical  organizations.  In 
this  sense  marriage  is  declared  by  the  laws  of 
many  of  the  States  to  be  a  civil  contract.  All 
of  the  American  States  have  legislated  with 
reference  to  the  institution  of  marriage,  and 
some  of  them  have  enacted  elaborate  pro- 
visions of  procedure.  According  to  the  gen- 
eral policy  of  the  State,  marriages  are  to  be 

7 


8  WOMAN  AND   THE  LAW 

encouraged,  and  all  that  is  done  in  restraint 
of  marriage  is  regarded  as  against  public 
policy.  It  is  so  expressly  declared  in  the 
laws  of  two  of  the  States— Pennsylvania  and 
Georgia— that  all  marriages  are  to  be  en- 
couraged, while  the  common  policy  of  all  the 
States  is  to  look  at  every  effort  to  restrain  or 
to  discourage  marriage  by  contract,  condi- 
tion, limitation,  or  otherwise  as  invalid  and 
void.  It  was  once  declared  in  the  British 
House  of  Lords  that  to  try  to  prevent  mar- 
riage was  the  blackest  of  all  political  sins. 
The  laws  of  all  the  States,  therefore,  sanc- 
tion all  those  marriages  where  the  man  and 
the  woman  at  the  time  of  the  marriage  were 
willing  to  enter  into  this  relation,  were  able 
to  contract,  and  did  so  contract  according  to 
the  forms  prescribed  by  law. 

There  are  in  fact  and  in  law  four  elements 
that  are  everywhere  regarded  as  essential  to 
a  valid  marriage;  these  elements  are,  first, 
competent  parties.  Each  of  the  parties  to 
i  marriage  must  have  the  capacity  to  marry 
the  other.  Thus,  a  woman  may  not  be  able 
to  marry  a  certain  man  either  because  she  is 
too  nearly  related  to  him  or  because  she  is 
not  of  the  same  race.  The  second  element 
may  be  described  as  the  contract  of  mar- 
riage. The  parties  must  mutually  agree  to 
be  thence fortli  husband  and  wife.  No  one 
can  be  married  without  his  or  her  consent, 


MARRIAGE  9 

no  matter  how  competent  the  parties  may 
be,  and  no  matter  what  formalities  they  go 
through.  The  third  essential  element  is  a 
solemnization  of  marriage.  The  parties 
must  go  through  a  certain  formality,  some- 
times religious  and  sometimes  civil.  The 
State,  for  the  protection  of  all  the  people  and 
the  preservation  of  social  institutions,  as  a 
rule  prescribes  formalities,  and  does  not  al- 
low people  to  enter  marriage  as  they  would 
an  ordinary  partnership.  The  fourth  ele- 
ment of  the  status  of  marriage  is  a  consum- 
mation. The  parties  are  expected  to  become 
husband  and  wife  in  fact,  and  assume  the 
marriage  rights,  duties,  and  obligations. 
Now,  the  absence  of  one  or  more  of  these 
elements  may  not  render  a  marriage  invalid, 
and  as  a  general  rule  the  absence  of  a  cere- 
mony or  of  any  consummation  of  a  marriage 
will  not  prevent  the  parties  from  being  re- 
garded as  man  and  wife,  whatever  other  re- 
sults may  be  entailed  upon  them.  For  a 
marriage  which  is  valid  may  be  invalid  irt 
certain  respects,  or  it  may  be  a  prohibited 
or  voidable  marriage.  A  legal  marriage  is 
one  with  respect  to  which  all  the  provisions 
of  the  law  have  been  complied  with,  but 
there  are  many  provisions  of  the  statutes  re- 
lating to  marriages  which  may  be  disre- 
garded without  preventing  the  parties  from 
becoming  by  the  marriage  completely  hus- 


10  WOMAN   AND   THE   LAW 

band  and  wife.  For  example,  a  license  is 
usually  required  by  law,  but  failure  to  secure 
a  license  will  not,  as  a  rule,  prevent  the  par- 
ties from  becoming  husband  and  wife  if  they 
are  otherwise  properly  married.  An  attempt 
at  marriage  that  is  invalid  for  all  intents  and 
purposes  is  called  a  void  marriage,  and  needs 
no  proceeding  of  a  court  to  declare  it  such. 
So  if  a  woman,  being  already  married,  mar- 
ries another  man,  her  marriage  is  invalid 
without  any  judgment  or  decree,  simply  be- 
es, use  the  State  will  not  allow  her  to  be  the 
wife  of  two  men  at  the  same  time.  Unfor- 
tunately, it  is  possible,  through  the  diversity 
of  legislation  in  this  matter,  for  a  marriage 
to  be  valid  in  one  State  and  not  in  another. 
A  voidable  marriage  is  one  which  is  valid  to 
all  intents  and  purposes  unless  and  until  it  is 
duly  avoided,  or  which  is  valid  for  all  intents 
and  purposes  unless  and  until  duly  con- 
firmed, and  so  becomes  unavoidable. 

There  have  developed  certain  rules  of  con- 
struction which  are  useful  when  a  study  is 
made  of  the  statutes  of  the  various  States 
relating  to  this  subject.  In  the  first  place, 
unless  by  the  use  of  express  words  a  statute 
goes  to  the  validity  of  a  marriage— that  is, 
unless  there  are  express  words  of  nullity- 
it  will  be  held  to  affect  only  the  legality  or 
the  regularity  of  the  marriage.  Thus,  in  the 
State  of  Maryland  a  statute  providing  sim- 


MARRIAGE  11 

ply  that  a  white  person  and  a  negro  shall 
not  intermarry  has  been  held  not  to  render 
such  a  marriage  invalid.  So,  again,  statutes 
that  prescribe  certain  formalities  in  connec- 
tion with  marriage,  but  not  providing  that  if 
such  formalities  are  not  followed  the  mar- 
riage shall  be  void,  have  been  held  to  be  di- 
rectory only.  Another  rule  of  construction 
is  that  a  statute  referring  to  the  formation 
of  marriage  will  be  made  to  harmonize  as  far 
as  possible  with  the  preexisting  law.  Thus, 
a  statute  declaring  a  marriage  void,  but  not 
expressing  any  intention  of  changing  the 
preexisting  law,  will  not  be  held  to  render  a 
marriage  formerly  voidable  absolutely  void. 
A  woman  may  be  generally  incapable  of 
marrying  or  incapable  of  forming  a  particu- 
lar marriage  because  of  want  of  age,  or  lack 
of  mental  capacity  to  understand  the  nature 
of  the  act,  or  want  of  physical  capacity  to 
consummate  the  marriage,  or  relationship  by 
blood  (consanguinity),  or  by  marriage  (affin- 
ity), with  the  man,  or  by  being  of  a  different 
race  from  the  man,  or  having  been  married 
before  and  that  marriage  not  being  at  an 
end.  As  to  want  of  age.  At  common  law  the 
marriage  of  a  party  under  seven  years  of  age 
was  void.  The  marriage  of  a  female  between 
seven  and  twelve  years  of  age  was  voidable, 
while  the  marriage  of  a  male  over  fourteen 
years  and  a  female  over  twelve  was  valid. 


12  WOMAN  AND   THE  LAW 

The  common-law  rule  requiring  twelve  years 
for  the  woman  has  been  retained  by  statute 
in  the  States  of  New  Hamjjshire,  Virginia, 
West  Virginia,  Kentucky,  and  Louisiana. 
Fourteen  years  for  the  woman  is  re<iuired  by 
the  laws  of  the  States  of  Alabama,  Arkansas. 
Georgia,  Illinois,  Iowa,  New  York,  North 
Carolina,  and  Texas.  Fifteen  years  for  the 
woman  is  required  in  California,  Minnesota, 
Oregon,  and  Wisconsin.  Sixteen  years  is 
required  in  the  States  of  Idaho,  Indiana, 
Michigan,  Nebraska,  Nevada,  Ohio,  and 
Wyoming.  Eighteen  years  is  required  in 
the  States  of  Montana  and  Washington. 

The  mental  capacity  that  is  necessary  to 
enable  a  woman  to  marry  or  to  confirm  her 
marriage  is  such  as  renders  her  capable  of 
understanding  the  nature  of  the  act  and  its 
consequences,  of  entering  into  ordinary  con- 
tracts, of  managing  herself,  her  property 
and  alTairs.  The  want  of  capacity  must  ex- 
ist at  the  time  of  the  marriage,  so  periods 
of  insanity  before  the  marriage,  or  the  devel- 
opment of  insanity  aftei'ward,  will  not  be  con- 
clusive of  mental  incapacity.  The  marriage 
of  an  insane  woman  during  a  lucid  interval, 
in  the  absence  of  statute,  has  been  held  valid, 
but  the  burden  of  proof  lies  on  the  party 
alleging  the  lucid  interval.  Physical  inca- 
pacity, or  impotence,  is  not  an  im])ediment 
to  marriage  in  the  absence  of  a  statute  or 


MARRIAGE  13 

ecclesiastical  jurisdiction.  Under  the  eccle- 
siastical law  impotence  rendered  a  marriage 
voidable,  and  in  nearly  all  of  the  States  at 
the  present  time  there  is  some  statutory  pro- 
vision rendering  impotence  an  impediment 
to  marriage  or  a  cause  for  divorce.  The 
marriage  of  a  man  and  a  woman  related  by 
blood  or  by  marriage  within  certain  specified 
degrees  may  be  under  the  provisions  of  the 
criminal  law  regarded  as  incest,  or  under  the 
ecclesiastical  law  as  voidable,  or  by  express 
statutes  void.  As  affecting  the  capacity  of 
a  woman  to  marry,  relationship  of  consan- 
guinity and  affinity  is  dependent  on  statute 
in  all  the  American  States  at  the  present 
time.  This  form  of  incapacity  is  based  pri- 
marily on  the  laws  of  Moses,  contained  in 
the  eighteenth  chapter  of  the  book  Leviticus, 
but  more  directly  upon  a  statute  passed  in 
the  thirty-second  year  of  the  reign  of  King 
Henry  VIII.  This  statute  confined  the  in- 
capacity^ to  all  related  in  the  ascending  or 
descending  line,  and  to  collaterals  including 
the  third  degree,  civil  reckoning— that  is,  all 
nearer  than  first  cousins— and  by  construc- 
tion the  statute  applied  whether  the  relation- 
ship was  by  blood  or  marriage,  whether  by 
whole  blood  or  half  blood,  whether  legiti- 
mate or  not. 

Nowhere  in   this   country  is  a  marriage 
with  a  deceased  wife's  sister  invalid,  except 


14  WOMAN  AND  THE  LAW 

in  the  State  of  Virginia.  The  general  rule 
is  that  no  woman  may  marry  her  lineal  an- 
cestor or  descendant,  or  her  brother  of  the 
half  or  whole  blood,  nor  can  there  be  a  mar- 
riage between  a  woman  and  her  uncle  or  a 
woman  and  her  nephew  by  blood.  A  woman 
may  not  marry  her  mother's  husband  nor 
lier  husband's  son,  nor  her  grandmother's 
husband.  By  the  law  of  the  State  of  Loui- 
siana a  woman  cannot  marry  a  second  time 
until  ten  months  after  the  dissolution  of  the 
preceding  marriage. 

As  to  difference  of  race.  In  some  of  the 
States  the  marriage  of  persons  of  different 
race,  as  white  persons  and  negroes,  or  white 
]3ersons  and  Indians,  is  forbidden  and  made 
a  crime,  which  is  called  miscegenation,  and 
the  statutes  sometimes  render  such  mar- 
riages void.  Under  the  rules  of  construction 
already  given,  such  marriages  between  per- 
sons of  different  races  will  be  regarded  as 
illegal  only  when  expressly  declared  to  be 
void.  On  account  of  the  considerable  inter- 
mingling of  races  that  has  occurred  in  cer- 
tain sections  of  the  country,  it  is  often  diffi- 
cult to  determine  whether  a  person  is  a  white 
or  a  negro,  and  as  a  rule  this  is  made  to  de- 
pend upon  the  terms  of  tlie  statute.  A  mu- 
latto is  not  usually  a  negro,  but  is  the  child 
of  a  negro  and  a  white  person,  not  the  child 
of  a  mulatto  and  a  white.     It  has  been  de- 


MARRIAGE  15 

cided  in  Virginia  that  where  a  negro  must 
have  one  fourth  negro  blood,  one  drop  less 
will  make  him  a  white.  In  North  Carolina, 
however,  a  person  with  one  eighth,  and  even 
with  one  sixteenth,  negro  blood  has  been  held 
to  be  a  negro. 

As  to  a  former  marriage.  A  woman  can- 
not have  two  husbands  at  the  same  time ;  and 
one  who  has  been  married  once  cannot  marry 
again  unless  such  first  marriage  was  void, 
or  voidable  and  has  been  duly  avoided  by 
judicial  decree,  or,  if  valid,  has  been  dis- 
solved by  death  or  by  a  decree  of  divorce  or 
by  a  legal  presumption  of  death.  In  most 
of  the  States  there  are  statutes  providing 
that  where  a  person  has  been  absent,  un- 
heard from,  or  beyond  the  seas  for  a  period 
of  five  or  seven  years,  the  other  party  to  a 
marriage  shall  not  be  punishable  for  marry- 
ing again.  As  a  legal  rule,  life  is  presumed 
to  continue  for  a  period  of  seven  years  after 
the  person  has  disappeared ;  but  if  a  woman, 
supposing  her  husband  to  be  dead,  marries 
within  seven  years  and  the  husband  is  never 
heard  of  afterward,  it  will  generally  be  pre- 
sumed not  only  that  he  is  dead,  but  that  he 
died  before  the  woman  marries  again.  The 
statutes  which  provide  that  under  certain 
circumstances  a  bona-fide  second  marriage 
will  be  void  only  from  the  time  that  it  is  so 
decreed  have  been  variously  construed,  but 


16  WOMAN   AND   THE  LAW 

the  courts  will  avoid,  if  possible,  a  construc- 
tion that  would  give  a  person  two  spouses  at 
the  same  time.  According  to  the  Spanish 
law,  a  woman  who  enters  into  matrimony  in 
ignorance  that  her  husband  has  a  wife  liv- 
ing, or  that  there  is  any  other  impediment 
to  the  marriage,  is  in  law  not  only  innocent 
of  crime,  but  is  entitled  to  all  the  rights,  in- 
cidents, and  privileges  that  pertain  to  law- 
ful marriage,  and  these  are  continued  so  long 
as  there  is  ignorance  as  to  the  second  mar- 
riage. 

When  a  woman  who  is  already  married 
goes  through  the  form  of  a  second  marriage 
she  may  be  guilty  of  the  crime  of  bigamy 
or  polygamy.  Bigamy  was  not  a  felony  at 
the  common  law,  nor  was  it  a  crime  of  which 
the  ordinary  common-law  tribunals  took 
cognizance  at  all.  It  was  originally  consid- 
ered as  being  exclusively  within  ecclesias- 
tical jurisdiction.  At  the  present  time,  gen- 
erally throughout  the  United  States  bigamy 
and  polygamy  are  crimes  by  statute. 

The  section  of  the  Revised  Statutes  of  the 
United  States  which  defines  bigamy,  omit- 
ting the  exceptions,  reads  as  follows : 

Every  person  having  a  husband  or  wife  liv- 
ing, who  marries  another,  whether  married  or 
single,  in  a  territory  or  other  place  over  which 
the  United  States  have  exchisive  jurisdiction,  is 
guihy  of  bigamy,  and  shall  be  punished  by  a  fine 


MARRIAGE  17 

of  not  more  than  $500,  and  by  imprisonment  for 
a  term  of  not  more  than  five  years. 

A  decree  of  a  court  may  be  obtained  where 
a  marriage  is  void  or  only  voidable.  In  the 
case  of  a  void  marriage,  the  parties  not  being 
thereby  incapacitated  for  marriage,  they 
may  marry  again  even  before  and  without 
a  decree  of  nullity.  In  the  case  of  a  voidable 
marriage,  it  being  void  ah  initio  if  duly 
avoided,  the  parties  may  marry  again  after 
a  decree  of  nullity.  But  a  marriage  where 
there  has  been  a  voidable  marriage  which 
has  not  been  avoided  is  both  invalid  and 
bigamous. 

An  absolute  divorce,  a  vinculo  matrimonii, 
or  from  the  bonds  of  matrimony,  dissolves 
the  relation  of  husband  and  wife,  as  will  be 
seen  more  fully  in  a  later  chapter,  and  either 
party  to  the  marriage  may  marry  again,  ex- 
cept where  the  statute  contains  a  special  pro- 
hibition. On  the  other  hand,  a  limited  di- 
vorce, o,  mensa  et  thoro,  does  not  of  itself 
dissolve  the  relation  of  husband  and  wife, 
and  neither  party  can  marry  again.  Such 
a  second  marriage,  however,  although  it  is 
invalid,  does  not  constitute  bigamy.  A  pro- 
hibition against  the  marriage  after  divorce 
of  the  guilty  party,  for  a  certain  time  or  ex- 
cept under  certain  conditions,  is  sometimes 
contained  in  a  statute,  as  in  the  State  of  New 

2 


18  WOMAN  AND   THE   LAW 

York,  and  is  sometimes  entered  by  a  court  as 
a  part  of  a  decree  of  divorce  under  the  au- 
thority of  a  statute,  as  in  Maryland.  The 
effect  is  the  same  in  either  case.  In  some 
of  the  States,  as  in  Massachusetts,  New 
York,  and  North  Carolina,  the  court  has  been 
given  the  power  to  annul  the  decree  of  pro- 
hibition and  allow  the  person  to  marry  after 
the  lapse  of  a  certain  time,  provided  that 
the  conduct  of  the  person  during  that  time 
has  been  good. 

As  to  the  consent  of  the  parties  to  a  mar- 
riage. Consent  is  the  very  essence  of  a  mar- 
riage, and  there  can  be  no  real  marriage 
without  it.  A  mere  ceremony  of  marriage 
cannot  make  a  man  and  a  woman  husband 
and  wife  where  they  go  through  the  forms  of 
marriage  in  jest,  or  regard  them  as  mere  pre- 
liminaries. Neither  does  acting  as  husband 
and  wife  toward  each  other  constitute  a  mar- 
riage. Consent  to  a  marriage  may  be  absent 
owing  to  error,  fraud,  or  duress.  It  should 
be  noted  that  a  mistake  of  person,  but  of 
nothing  else,  affects  the  validity  of  marriage, 
as  mistakes  as  to  character,  fortune,  and 
health  make  no  difference,  the  parties  taking 
each  other  for  better  or  for  worse. 

The  practice  of  any  deceit  or  false  repre- 
sentations which  induce  consent,  especially 
where  the  deceived  person  is  weak  in  mind 
or  young,  will  invalidate  a  marriage.     The 


MARRIAGE  19 

fact  that  a  person  marries  under  actual  com- 
pulsion will  also  invalidate  a  marriage.  It 
is  not  sufficient  that  a  woman  marry  unwill- 
ingly, she  must  have  been  forced  by  a  fear 
of  bodily  harm. 

The  meeting  of  the  minds  that  is  essential  to 
a  valid  marriage  may  be  expressed  in  words, 
written  or  oral,  or  by  signs  or  implied  from 
conduct.  No  technical  words  are  necessary, 
even  where  the  statute  requires  a  solemniza- 
tion. It  need  only  apx)ear  that  the  man  and 
the  woman  intend  to  live  together  as  husband 
and  wife  and  to  produce  children  under  the 
sanction  of  the  law.  It  is  doubtful  whether 
persons  can  actually  marry  by  letter,  and 
an  attempted  marriage  by  telephone  would 
probably  stand  on  the  same  footing  as  at- 
tempted marriages  by  letter.  If  a  legal 
marriage  is  the  object  of  the  persons,  any 
stipulations  that  they  may  make  that  are  in- 
consistent with  the  law  are  simply  void.  The 
apparent  contract  is  not  affected  by  a  mental 
reservation  of  one  of  the  parties.  The  agree- 
ment must  be  to  be  husband  and  wife  thence- 
forth; it  must  contemplate  the  present  as- 
sumption of  the  marriage  state. 

As  to  the  ceremonies  of  marriages:  The 
celebration  of  marriage  was  necessary  by  the 
canon  law  prior  to  the  Council  of  Trent,  but 
was  not  necessary  by  the  civil  law  or  by  the 
law  of  Scotland.    A  ceremony  has  been  de- 


20  WOMAN  AND   THE  LAW 

clared  necessary  by  the  common  law  of  Eng- 
land in  Maryland,  Massachusetts,  and  North 
Carolina.  Tlie  contrary  has  been  held  by 
the  Supreme  Court  of  the  United  States  in 
a  case  arising  in  Tennessee,  and  in  Alabama, 
California,  Georgia,  Illinois,  Iowa,  Ken- 
tucky, Michigan,  Minnesota,  Mississippi, 
Missouri,  New  York,  Ohio,  Kliode  Island, 
and  Pennsylvania.  A  celebration  is  neces- 
sary by  the  law  of  Mexico.  All  of  the  Ameri- 
can States  at  the  present  time  have  statutes 
providing  for  the  celebration  of  marriages, 
what  permission  or  license  must  be  gotten  or 
notice  given  before  the  marriage,  who  must 
perform  the  ceremony,  and  what  record  of 
the  marriage  must  be  made.  As  a  rule,  such 
provisions  do  not  aifect  the  validity,  but  only 
ihe  legality  of  a  marriage.  Whether  or  not 
any  of  such  provisions  must  be  complied 
with  in  order  that  a  marriage  may  be  valid 
depends,  in  the  first  place,  ujoon  whether  by 
the  preexisting  common  law  any  such  for- 
mality was  necessary,  and,  in  the  second 
place,  whether  it  were  or  not,  there  is  a  pro- 
vision in  the  statute  stating  that  non-com- 
pliance with  it  shall  render  a  marriage  void. 
The  necessity  of  the  celebration  depends 
upon  the  law  of  a  place  where  the  parties 
marry.  ^IMms,  if  the  parties  desire  to  marry 
within  the  State  of  Maryland,  they  must  not 
only  have  a  celebration,  but  a  religious  one. 


MARRIAGE  21 

In  England,  before  the  Reformation,  there 
could  have  been  no  valid  marriage  without 
the  presence  of  a  priest  ordained  by  a  bishop, 
or  afterward  without  the  presence  of  a  priest 
or  deacon.  The  modern  statutes  have  ex- 
tended the  right  to  celebrate  marriages  to 
the  regularly  ordained  ministers  of  any  reli- 
gious denomination,  and  in  most  of  the 
American  States  to  judges,  chancellors,  and 
magistrates.  Special  provisions  have  been 
made  for  marriages  of  Friends  or  Quakers. 
The  parties  cannot  marry  themselves  with 
a  ceremony  when  a  celebration  is  required, 
as  there  must  be  a  celebrant.  The  celebrant 
must  be  a  third  party;  a  minister  cannot 
marry  himself.  Wherever  the  law  requires 
a  marriage  to  be  recorded,  such  a  record,  or 
a  copy,  is  direct  evidence  of  the  marriage, 
both  in  civil  and  criminal  cases;  but  such  a 
record  proves  only  what  is  required  to  be 
recorded,  and  is  not  conclusive.  Any  person 
present  at  the  marriage  may  testify  concern- 
ing it,  whether  a  third  party  or  the  celebrant, 
and,  in  general,  even  the  parties  themselves. 

In  asserting  a  marriage  which  took  place 
in  another  country  or  state,  it  is  customary 
to  prove  first  the  foreign  law  and  then  a  mar- 
riage by  contract  or  by  celebration  as  re- 
quired by  such  a  law.  If  the  fact  of  a  cele- 
bration is  proved,  it  will  be  presumed  to  be 
in  conformity  with  the  foreign  law. 


22  WOMAN   AND   THE   LAW 

What  is  known  as  a  nullity  suit  is  one  that 
is  brought  for  the  purpose  of  having  a  void 
marriage  judicially  declared  to  be  void,  or 
of  having  a  voidable  marriage  judicially 
made  void.  Nullity  suits  are  frequently  in 
the  statutes  spoken  of  as  divorce  suits,  but 
properly  a  divorce  suit  is  a  suit  for  the  pur- 
pose of  dissolving  a  marriage,  and  the  con- 
sequences of  a  divorce  are  very  different 
from  those  of  a  decree  of  nullity,  as  the  lat- 
ter does  not  destroy  marriage  rights,  but  de- 
clares that  they  never  existed.  Jurisdiction 
in  the  United  States  to  declare  void  a  mar- 
riage that  is  otherwise  valid,  as  is  the  case 
with  jurisdiction  to  grant  a  divorce,  depends 
entirely  upon  statute. 

A  voidable  marriage  may,  in  general,  be 
avoided  on  the  application  of  either  party, 
but  the  decree  must  be  passed  during  the 
lifetime  of  both  of  the  parties,  or  the  mar- 
riage will  be  binding. 

On  and  after  the  first  day  of  January,  1902, 
what  is  known  as  a  common-law  marriage 
will  not  be  recognized  in  the  State  of  New 
York,  unless  entered  into  through  a  written 
contract  of  marriage,  signed  by  both  parties, 
and  at  least  two  witnesses  who  shall  sub- 
scribe to  the  same,  stating  the  place  of  resi- 
dence of  each  of  the  parties  and  witnesses, 
and  the  date  and  place  of  marriage.  The 
contract  must  be  acknowledged  by  the  par- 


MARRIAGE  23 

ties  and  witnesses  in  the  manner  required  for 
the  acknowledgment  of  a  conveyance  of  real 
estate  to  entitle  such  a  convej^ance  to  be  re- 
corded. Such  a  contract  must  be  filed,  within 
six  months  after  its  execution,  in  the  office  of 
the  clerk  of  the  town  or  city  in  which  the 
marriage  was  solemnized.  Such  a  contract, 
or  a  certified  copy,  shall  be  presumptive  evi- 
dence of  the  marriage. 

This  law  further  provides  that  no  mar- 
riage claimed  to  have  been  contracted  within 
the  State  on  or  after  January  1,  1902,  other- 
wise than  as  therein  provided,  shall  be  valid 
for  any  purpose  whatever;  provided,  how- 
ever, that  no  such  marriage  shall  be  deemed 
or  adjudged  to  be  invalid,  nor  shall  the  valid- 
ity thereof  be  in  any  way  affected,  on  ac- 
count of  any  want  of  authority  in  any  person 
solemnizing  the  marriage,  if  consummated 
with  the  full  belief  on  the  part  of  the  persons 
so  married,  or  either  of  them,  that  they  were 
lawfully  joined  in  marriage,  or  on  account  of 
any  mistake  in  the  date  or  place  of  marriage, 
or  in  the  residence  of  either  of  the  parties. 
This  law  does  away  with  the  so-called  com- 
mon-law marriage  which  has  been  recog- 
nized in  the  State  of  New  York  since  the 
year  1809. 


PLURAL   MARRIAGES  OF   THE 
MORMONS 

IT  is  evident  that  the  institution  of  polyg- 
amy among  our  Mormon  population  is 
declining.  The  anti-polygamy  enactments 
of  Congress  are  now  being  rigidly  enforced, 
and  there  is  also  developing  within  the  Mor- 
mon C'hurch  a  desire  for  a  more  liberal  in- 
terpretation of  the  dogma  of  celestial  mar- 
riage. Yet,  while  polygamy  is  dying  out  as 
a  social  institution,  it  cannot  be  said  to  be 
extinct,  and  plural  marriages  are  still  legal 
factors  in  the  lives  of  a  number  of  women, 
and  for  this  reason,  if  for  no  other,  they 
should  be  included  in  a  study  of  the  legal 
condition  of  American  women.  The  Mor- 
mon Church,  or,  more  correctly,  according  to 
its  legal  title,  the  Church  of  Jesus  Christ  of 
Latter-Day  Saints,  recognizes  two  kinds  of 
marriage— the  temporal  and  the  spiritual. 
With  the  first  kind  of  marriage  a  man  and  a 
woman  are  united  for  this  world  only,  while 
with  the  spiritual  marriage  the  union  is  eter- 
nal. Marriage  for  eternity  is  regarded  as 
an  everlasting  covenant  to  be  husband  and 
wife,  and  is  looked  upon  as  a  religious  ordi- 

24 


PLURAL  MARRIAGES  OF  MORMONS  25 

nauce  of  a  most  sacred  character.  Temporal 
marriage  is  a  joining,  the  spiritual  marriage 
is  a  sealing  process.  Temporal  marriages 
are  permitted  by  the  church,  but  they  are 
not  encouraged,  because  persons  marrying  in 
this  way  are  considered  as  performing  only 
half  their  duty.  It  is  said  to  be  practised 
chiefly  by  lukewarm  adherents  of  the  faith, 
by  widowers  desiring  only  one  wife  in  hea- 
ven, and  by  widows  who  were  previously 
joined  for  eternity  to  their  departed  hus- 
bands. The  church  discourages  temporal 
marriage  by  teaching  that  the  children  born 
of  such  a  marriage  by  one  who  has  been  a 
widow  belong  in  the  next  world  not  to  their 
earthly  father,  but  to  the  man  to  whom  their 
mother  was  sealed  eternally— that  is,  to  her 
first  husband.  Those  who  are  unsealed,  com- 
prising those  who  never  marry  and  those 
who  marry  only  for  their  natural  lives,  oc- 
cupy an  inferior  status  in  heaven.  They  are 
only  allowed  to  become  angels— that  is,  min- 
istering spirits  to  those  who  are  fully  re- 
deemed and  glorified.  They  can  have  no 
part  in  the  extension  of  God's  kingdom  by 
helping  to  people  new  worlds. 

In  the  marriage  code  of  the  Mormon 
Church  there  is  nothing  to  prevent  a  person 
being  married  to  one  party  for  this  world 
and  to  another  for  the  next,  no  matter 
whether  the  latter  is  already  married  to  still 


26  WOMAN  AND   THE   LAW 

another  person  for  this  life.  When  this  oc- 
curs, it  is  not  lawful  to  assume  marital  rela- 
tions on  earth,  for  such  relations  must  be 
postponed  until  after  the  resurrection.  A 
woman  can  be  sealed  to  only  one  man,  but 
the  same  man  may  be  sealed  eternally  to 
many  women  if  he  so  desire  and  the  presi- 
dent of  the  church  approve.  The  Book  of 
Mormon  forbids  a  man  to  have  more  than 
one  wife,  but  it  also  states  that  if  the  Lord 
should  at  any  time  wish  otherwise  he  would 
command  his  people.  A  subsequent  revela- 
tion on  the  eternity  of  the  marriage  covenant, 
including  plurality  of  wives,  is  said  to  have 
been  given  through  Joseph  Smith,  the  pro- 
phet, at  Nauvoo,  Hancock  County,  Illinois, 
July  12,  1843.  This  revelation  has  consti- 
tuted the  theological  sanction  for  plural  mar- 
riages. 

If  a  man  felt  called  upon  to  take  the  ordi- 
nance of  ]:)lural  marriage,  he  was  required 
to  consult  the  president  of  the  church,  whose 
duty  it  was  to  look  into  the  affairs  of  the  can- 
didate and  to  inquire  of  the  Lord  if  the  step 
would  be  pleasing  to  him.  In  the  event  of  a 
favorable  response,  he  was  not  at  liberty  to 
consummate  his  desire  until  he  had  sought 
the  consent  of  his  first  wife.  If  she  offered 
no  objection  all  was  well,  but  if  she  withheld 
her  sanction,  and  he  failed  to  win  her  to  his 
way  of  thinking  after  due  effort,  he  was  at 


PLURAL  MARRIAGES  OF  MORMONS   27 

liberty  to  proceed  against  her  will.  When 
these  preliminaries  had  been  gone  through, 
he  consulted  the  woman  of  his  choice,  and  at 
the  ceremony  his  first  wife,  when  favorably 
disposed  to  the  second  marriage,  presented 
the  new  bride  to  her  husband.  The  ground 
upon  which  a  man  was  permitted  in  this  mat- 
ter to  act  contrary  to  the  wishes  of  his  first 
wife  was  that  her  obstinacy  should  not  deter 
him  from  the  performance  of  a  religious  ob- 
ligation. 

In  1895,  Wilford  Woodruff,  president  of 
the  church,  made  public  a  revelation  amend- 
ing the  earlier  revelation  with  reference  to 
the  celestial  order  of  marriage,  and  prohibit- 
ing the  contracting  of  further  polygamous 
marriages. 


T 


HUSBAND  AND   WIFE 

HE   course   of   modern   legislation   has 
I     JL    tended  very  generally  to  do  away  in  its 
\  strictness   with   the   fiction   of   the   common 
/  law  tliat  by  marriage  a  husband  and  wife  be- 
(^come  one  legal  person.     By  that  legal  fic- 
tion, a  woman  by  marriage  was  regarded  as 
having  lost  all  legal  identity;  she  became 
civiliter    mortua,    she    was    covered    by    or 
merged  in  her  husband,  and  she  was  called 
''feme  covert,"  and  her  condition  was  called 
V '  coverture. "     Such  a  fiction  was  unknown 
to  the  civil  law,  and  in  the  development  of 
the  law  of  equity  the  fiction  of  unity  was 
largely  ignored.     American  legislation  has 
tended  ever  more  and  more  to  preserve  the 
legal  identity  of  woman  in  the  married  state 
and  to  develop  her  legal  personality. 

Concerning  the  general  relation  of  hus- 
band and  w^ife  there  are  some  interesting 
declarations  to  be  found  in  the  constitutions 
and  statutes  of  the  several  States  and  Terri- 
tories. Thus,  it  is  declared  in  California, 
Georgia,  and  New  Mexico  that  the  husband 
is  the  head  of  the  family,  and  that  the  wife 
is  subject  to  him.    It  is  further  declared  in 

28 


HUSBAND  AND  WIFE  29 

Georgia  tliat  the  wife's  legal  existence  is 
merged  in  that  of  her  husband,  following  the 
rule  of  the  common  law,  except  so  far  as  the 
law  recognizes  her  separately,  either  for  her 
own  protection,  her  own  benefit,  or  the  pres- 
ervation of  public  order.  The  law  of  New 
Mexico  is  even  more  declarative;  the  hus- 
band owes  the  wife  ' '  fidelity,  favor,  and  pro- 
tection." "He  should  make  her  a  partici- 
pant in  all  the  conveniences  he  enjoys." 
"He  should  show  her  the  utmost  and  every 
attention  in  case  of  sickness,  misfortune,  or 
accident,  and  provide  for  her  the  necessaries 
of  life  according  to  his  condition  or  ability. ' ' 
It  is  also  declared  that  the  wife  owes  fidelity 
and  obedience  to  the  husband,  and  that  she  is 
obliged  to  live  with  him.  In  California  and 
Louisiana  it  is  declared  that  the  husband 
and  wife  contract  toward  each  other  obliga- 
tions of  mutual  respect,  assistance,  fidelity, 
and  support.  In  California  and  the  Dakotas 
it  is  declared  that  the  husband  may  choose 
any  reasonable  place  or  mode  of  living,  and 
the  wife  must  conform  thereto;  while  Loui- 
siana declares  that  the  wife  is  bound  to  live 
with  her  husband,  and  to  follow  him  wher- 
ever he  chooses  to  reside;  also  that  the  hus- 
band is  obliged  to  receive  her,  and  to  furnish 
her  with  whatever  is  required  for  the  con- 
venience of  life,  in  proportion  to  his  means 
and  condition.    In  Louisiana  a  wife  cannot 


30  WOMAN  AND   THE   LAW 

appear  in  court  without  the  authority  of  her 
husband,  although  she  may  be  in  trade  as  a 
merchant,  or  possess  her  property  separate 
from  her  husband.  The  States  of  California, 
Nevada,  and  the  Dakotas  have  declared  that 
the  wife  must  support  the  husband,  when  he 
has  not  deserted  her,  out  of  her  sei)arate 
property  when  he  has  no  separate  property 
and  there  is  no  community  property  and  lie 
is  unable  from  infirmity  to  support  himself. 

In  New  Mexico  both  the  husband  and  the 
wife  have  a  process  in  the  courts  to  com- 
pel the  other  to  perform  such  duties  as  are 
specified. 

It  is  a  very  general  rule  of  the  statute  law 
in  the  United  States  that  a  husband  or  his 
separate  property  is  not  liable  for  the  debts 
of  the  wife  contracted  before  her  marriage, 
and  in  many  of  the  States  the  husband  is  not 
liable  on  any  cause  of  action  against  the  wife 
which  originated  prior  to  the  marriage.  But 
in  a  few  States  the  husband  is  liable  for  such 
debts  to  the  extent  of  any  property  acquired 
from  the  wife  by  any  agreement  made  before 
marriage,  as  in  New  York  and  West  Vir- 
ginia; or  to  the  extent  of  any  property  re- 
ceived by  him  from  or  through  the  wife,  as 
in  the  States  of  Indiana,  Kentucl^,  Missouri, 
Colorado,  and  Georgia.  As  a  general  prin- 
ciple of  law,  the  husband  is  not  liable  on  his 


HUSBAND  AND  WIFE  31 

wife's  contracts  in  respect  to  her  separate 
property,  trade,  business,  labor,  or  services, 
and  so  it  is  expressed  in  the  States  of  Massa- 
chusetts, Connecticut,  New  York,  Indiana, 
Michigan,  Arkansas,  and  the  Territory  of 
Arizona.  In  Massachusetts  and  Arkansas 
the  husband  is  not  liable  on  any  judgment 
recovered  against  the  wife  alone.  In  Geor- 
gia it  is  declared  that  the  husband's  consent 
is  to  be  presumed  to  the  wife's  agency  in  all 
purchases  of  necessaries  suitable  for  her  con- 
dition, made  for  the  use  of  herself  and  her 
family;  such  a  presumption, however,  may  be 
rebutted  by  proof.  The  code  of  California 
in  this  matter  reads:  "If  the  husband  neg- 
lects to  make  adequate  provision  for  the  sup- 
port of  his  wife,  any  other  person  may  in 
good  faith  supply  her  with  articles  necessary 
for  her  support,  and  recover,  the  reasonable 
value  thereof  from  the  husband. ' '  The  Con- 
necticut law  declares  that  the  husband's 
property  is  to  be  first  applied  to  satisfy  any 
joint  liability  of  the  husband  and  the  wife 
for  the  support  of  the  family,  and  that  the 
wife  is  entitled  in  equity  to  an  indemnity 
for  property  of  her  own  taken  for  such  a 
purpose. 

As  a  general  rule,  a  husband  is  not  liable 
for  the  torts— that  is,  for  the  actionable 
wrongs— committed  by  his  wife,  except  when 


32  WOMAN  AND   THE  LAW 

committed  under  his  actual  coercion,  or  when 
he  would  be  liable  if  the  relation  of  marriage 
did  not  exist. 

On  the  other  hand,  a  wife  is  not  generally 
made  liable,  nor  is  her  separate  property 
liable,  for  the  debts  of  her  husband.  It  is  de- 
clared that  the  separate  property  of  the  wife 
is  not  bound  by  any  judgment  or  execution 
against  the  husband  in  the  States  of  Mas- 
sachusetts, Vermont,  Maryland,  Kentucky, 
Missouri,  the  Dakotas,  and  Montana.  But  it 
is  declared  that  both  the  husband  and  the 
wife  are  equally  liable  for  the  expenses  of 
the  family  and  for  the  education  of  the  chil- 
dren, and  either  or  both  may  be  sued  in  Con- 
necticut, Illinois,  Iowa,  Oregon,  Washington, 
Alabama,  and  New  Mexico.  In  the  State  of 
Montana  a  wife  is  liable  for  all  necessaries 
procured  for  the  use  and  benefit  of  herself 
and  of  her  children  under  eighteen  years  of 
age.  In  the  States  of  Pennsylvania  and  Ala- 
bama a  debt  for  necessaries  furnished  to  the 
family  may  be  enforced  against  the  property 
of  the  wife,  after  an  execution  against  the 
husband  is  returned  unsatisfied. 

It  is  the  general  rule  that  the  debts  of  a 
wife  contracted  before  marriage  may  be  en- 
forced against  her  and  against  her  separate 
property  after  marriage.  Also  the  debts  of 
a  wife  contracted  by  her  after  marriage  may 
be  enforced  against  her  and  her  separate 


HUSBAND  AND  WIFE  33 

property.  A  judgment  may  be  recovered 
against  the  wife  in  her  own  name  in  Maine, 
Rhode  Island,  and  Ohio ;  or  she  may  be  sued 
jointly  with  her  husband  in  Maine,  Rhode 
Island,  Maryland,  and  Alabama. 

A  married  woman,  with  her  separate  prop- 
erty, is  liable  for  torts  committed  by  her,  and 
the  statutes  so  declare  in  the  States  of  Maine, 
Connecticut,  Indiana,  Illinois,  Iowa,  Minne- 
sota, Washington,  and  in  the  Territory  of 
New  Mexico. 


TORTS  OF  A  PERSONAL  NATURE 

AT  the  common  law,  as  a  general  rule, 
JlJL.  where  an  injury  to  the  rights  of  the 
person,  such  as  injuries  to  health,  reputation, 
or  liberty,  is  inflicted  upon  a  married  woman, 
an  action  may  be  maintained  in  the  name  of 
the  husband  and  wife  for  damages  where  the 
ground  of  the  action  is  the  wife's  personal 
pain  or  suffering,  either  physical  or  mental, 
or  both.  Such  an  action  would  be  legarded 
at  the  common  law  as  the  action  of  the  wife, 
subject  to  a  right  on  the  })art  of  the  defen- 
dant of  insisting  on  having  the  husband 
joined.  But  at  the  common  law,  if  the  dam- 
ages are  collected  during  the  cov^erture  they 
become  the  absolute  i)roi)erty  of  the  husband. 
If,  however,  the  husband  should  die  before 
or  during  the  ]jendency  of  the  suit,  the  dam- 
ages will  belong  to  the  wife,  and  will  not  go 
to  the  administrator  of  the  husband's  estate; 
so,  also,  the  cause  of  action  survives  to  the 
wife,  and  she  may  prosecute  the  suit  to  judg- 
ment and  to  execution.  But  upon  the  death 
of  the  wife  the  action  will  not,  at  connnon 
law,  survive  to  the  husband,  nor  even  to  the 
wife's  administrator.    By  force  of  statutes, 

34 


TORTS  OF  A  PERSONAL  NATURE    35 

however,  as  in  the  States  of  Maine  and  Ver- 
mont, such  an  action  survives  to  the  wife's 
administrator. 

Under  the  statutes  of  the  various  States 
relating  to  married  women,  usually  the  sole 
right  of  action  is  given  to  the  wife  for  torts 
committed  against  her,  and  it  is  the  prevail- 
ing rule  that  she  is  required  to  bring  suit  in 
her  own  name.  In  the  States  of  Louisiana 
and  Texas,  under  statutes,  the  cause  of  ac- 
tion for  the  recovery  of  damages  for  injury 
to  the  person  of  the  wife  is  regarded  as  com- 
munity estate,  and  such  estate  being  repre- 
sented by  the  husband,  the  right  to  sue  for 
such  injuries  is  vested  in  him,  and  must  be 
asserted  by  him,  unless  there  is  evidence  of 
exceptional  facts  indicating  that  the  wife's 
rights  and  necessities  require  that  she  should 
receive  the  aid  of  the  court.  But  a  mere  sep- 
aration of  the  husband  and  wife,  and  his 
refusal  to  join  her  in  the  action,  is  not  suffi- 
cient to  change  the  rule.  In  California,  al- 
though the  right  of  action  and  the  damages 
recovered  are  community  property,  both  the 
husband  and  wife  are  necessary  parties. 
Where  the  injury  to  the  wife  is  such  that  the 
husband  sustains  a  separate  loss  or  damage, 
as,  for  example,  where  he  is  put  to  expense 
or  is  deprived  of  the  society  or  the  services 
of  his  wife,  he  is  entitled  to  recover  damages, 
and  he  may  bring  a  separate  action  in  his 


36  WOMAN  AND   THE  LAW 

own  name,  but  unless  based  upon  a  statute 
no  sucli  damages  can  be  recovered  in  an  ac- 
tion b}^  the  wife  alone  or  by  the  husband  and 
wife  jointly.  Usually  the  husband  has  no 
right  of  action  for  damages  for  the  death  of 
the  wife  as  the  result  of  an  injury,  except  as 
the  executor  or  administrator  of  her  estate. 
It  has  been  held,  however,  in  New  York  and 
Indiana  that  where  a  cause  of  action  would 
exist  if  the  wife  had  lived,  if  she  survives  the 
injury  even  for  a  few  days  the  husband  may 
maintain  an  action  for  the  loss  of  the  society 
and  services  of  the  wife  during  that  time. 

In  general,  a  husband  is  entitled  to  the  so- 
ciety, comfort,  and  assistance  of  his  wife, 
and  whoever,  by  the  alienation  of  her  affec- 
tions, deprives  him  thereof  commits  a  tort 
against  the  husband  for  which  damages  may 
be  recovered,  and  this  is  so  although  the 
wrong  is  done  by  a  parent  of  the  wife.  What 
is  known  as  the  "loss  of  consortium"  is  the 
main  basis  for  all  actions  of  this  kind,  and 
by  this  term  is  understood  the  loss  of  the  con- 
genial society,  affection,  and  assistance  of  the 
wife.  There  is  a  right  of  action  to  the  hus- 
band even  for  the  partial  alienation  of  his 
wife's  affections,  and  it  has  been  said  that 
even  if  a  wife  has  no  affection  for  her  hus- 
band another  person  has  no  right  to  inter- 
fere and  prevent  any  chance  of  its  springing 
up  in  the  future,  and  a  person  so  interfering 


TORTS   OF   A   PERSONAL  NATURE    37 

is  liable  ou  an  action  for  damages.  It  is  fre- 
quently charged  in  actions  for  alienation  of 
affections  that  the  defendant  has  either  har- 
bored the  wife,  or  enticed  her  away,  or  in- 
duced her  to  abandon  her  husband,  but  the 
alienation  of  affections  for  which  the  law 
gives  a  redress  may  be  accomplished  not- 
withstanding the  continuous  residence  of  the 
wife  under  the  husband's  roof.  Indeed,  it 
would  seem  that  such  a  continued  residence 
only  contributes  an  aggravation  to  the  in- 
jury, where  an  elopement  might  be  an  alle- 
viation. Nor  is  it  necessary,  in  order  to 
maintain  such  an  action,  that  it  be  shown 
that  the  defendant  has  debauched  the  wife. 
It  is,  of  course,  a  general  principle  of  law 
that  no  one  can  maintain  an  action  for  a 
wrong  when  he  consents  or  contributes  to  the 
acts  which  cause  the  loss.  Under  this  prin- 
ciple the  consent  of  the  husband  to  the  acts 
of  the  wife  will  act  as  a  bar  to  an  action  for 
the  alienation  of  the  wife's  affections. 

As  a  general  rule,  the  measure  of  damages 
in  an  action  for  the  alienation  of  a  wife's 
affections  is  the  value  of  her  conjugal  so- 
ciety, affection,  and  assistance,  less  the  value 
of  the  husband 's  duty  to  support,  clothe,  and 
care  for  her  when  this  duty  has  not  been  dis- 
charged by  the  husband,  as  in  a  case  where 
the  wife  is  living  apart  from  the  husband. 
It  is  sometimes  held,  also,  that  the  husband 


38  WOMAN  AND   THE   LAW 

may  recover  for  the  injury  done  to  his  feel- 
ings, and  for  the  disgrace  and  dishonor 
brought  upon  him  and  upon  his  family.  In 
a  case  where  the  defendant  wilfully  and  ma- 
liciously committed  the  injury,  the  plaintiff, 
in  addition  to  compensating  damages,  is  en- 
titled to  damages  as  a  punishment  to  the  de- 
fendant and  as  an  example  to  others.  Such 
are  called  exemplary  damages.  Proper  evi- 
dence which  tends  to  show  that  the  plaintiff 
has  suffered,  as  a  matter  of  fact,  less  injury 
than  might  be  inferred  from  the  act  com- 
plained of  will  be  received  in  mitigation  or 
reduction  of  damages. 

Whether  at  the  common  law  a  married 
woman  has  the  right  to  maintain  an  action 
for  the  alienation  of  her  husband 's  affections 
seems  to  be  disputed.  She  often  is  allowed 
this  right  under  married  womens'  acts,  as 
in  the  States  of  Illinois,  Iowa,  Michigan, 
Minnesota,  New  Hampshire,  and  Ohio.  As 
in  the  case  of  actions  for  the  alienation  of 
wives'  aff'ections,  the  wife's  right  of  action 
rests  upon  the  ' '  loss  of  consortium. "  In  an 
action  of  this  kind  by  a  married  woman  it  is 
necessary  to  prove,  in  addition  to  the  fact  of 
alienation  or  the  fact  of  the  husband's  in- 
fatuation for  the  defendant,  that  there  has 
been  a  direct  interference  on  the  part  of  the 
defendant,  and  the  burden  of  proof  is  on  the 
plaintiff  to  show  such  interference.     There 


TORTS   OF  A   PERSONAL  NATURE    39 

seems  to  be  a  distinction  drawn  between  an 
action  against  a  stranger  and  an  action 
against  the  parents  of  the  husband.  Parents 
are  regarded  as  under  an  obligation  by  the 
law  of  nature  to  relieve  their  children  when 
in  distress;  accordingly,  it  appears  that  al- 
though a  parent  directly  interferes,  the  wife 
will  have  no  cause  of  action  against  the  pa- 
rent, although  the  result  of  the  parent's  ac- 
tion is  the  alienation  of  the  husband's  affec- 
tions, if  he  acts  in  good  faith,  and  the  motive 
of  the  parent  in  such  a  case  is  presumed  to 
be  good  until  the  contrary  is  shown. 

In  an  action  for  the  alienation  of  the  hus- 
band's affections  the  plaintitf  may  recover 
for  the  loss  of  the  husband's  support,  affec- 
tion, society,  and  protection,  and  for  anxiety, 
mortification,  and  injury  to  her  feelings. 
The  amount  of  damages  is  to  be  determined 
by  the  jury  in  their  sound  discretion,  inas- 
much as  actual  measurement  is  not  possible. 


THE   RIGHT  OF  A   WIFE   TO 
SUPPORT 

A  NORMAL  feature  of  the  contract  of 
marriage  is  the  support  of  the  wife  by 
the  husband  during  marriage.  Such  a  right 
to  a  support  results  naturally  from  the  more 
dependent  position  of  a  woman  in  married 
life,  removed  as  she  is,  to  a  greater  or  less 
extent,  from  the  opportunities  of  earning  a 
livelihood  by  her  own  exertions.  As,  how- 
ever, the  obligations  arising  from  the  mar- 
riage contract  are  not  sufficiently  realized  by 
men  to  produce  always  this  normal  relation,  a 
body  of  legislation  has  developed  that  is  in  a 
way  supplementary  to  the  recognition  by  the 
law  of  the  institution  of  marriage,  and  which 
defines  with  greater  or  less  detail  the  legal 
right  which  a  wife  possesses  of  su])])ort  from 
her  husband  during  marriage.  Such  legis- 
lation is  but  a  |)art  of  a  general  develop- 
ment of  American  statute  law  during  the 
nineteenth  century,  having  for  its  object  the 
recognition  of  the  greater  legal  individuality 
of  women. 

Very  nearly  all  of  the  States  at  the  pres- 
ent time  have  embodied  in  the  statute  law 

40 


THE  RIGHT  OF  A  WIFE  TO  SUPPORT  41 

some  specific  recognition  of  the  right  of  a 
married  woman  to  some  support  out  of  the 
property  of  her  husband,  and  the  exceptions 
in  this  respect  appear  to  be  the  States  of 
Alabama,  Arkansas,  California,  Idaho,  Mis- 
sissippi, Tennessee,  and  Wyoming,  and  the 
Territory  of  New  Mexico. 

The  provision  of  the  law  of  the  State  of 
Colorado  may  be  taken  as  indicative  of  the 
general  spirit  of  legislation  in  this  matter. 
It  is  declared  to  be  unlawful  for  any  man 
residing  in  that  State  wilfully  to  neglect,  fail, 
or  refuse  to  provide  a  reasonable  support 
and  maintenance  for  his  wife  and  minor 
children,  and  any  person  guilty  of  such  neg- 
lect, upon  the  complaint  either  of  the  wife, 
the  chairman  of  tlie  Board  of  County  Com- 
missioners, or  the  agent  of  the  Humane  So- 
ciety, and  upon  a  conviction  thereof,  shall 
be  adjudged  guilty  of  a  misdemeanor  and 
shall  be  committed  to  the  county  jail  for  not 
longer  than  a  period  of  sixty  days,  unless  it 
shall  appear  that,  owing  to  physical  or  other 
cause,  he  is  unable  to  furnish  such  support. 
(Session  I^aws,  1883,  p.  126.) 

In  Connecticut  it  is  provided  that  if  a  hus- 
band neglect  to  support  his  wife  he  may  be 
committed  to  the  workhouse  or  county  jail 
and  sentenced  to  hard  labor  for  not  longer 
than  sixty  days,  unless  he  can  show  good 
cause  why  he  is  unable  to  furnish  such  sup- 


42  WOMAN  AND   THE   LAW 

130 rt,  or  unless  he  can  furnish  a  bond  or  such 
a  sum  toward  such  support  as  the  court  may 
require,  for  a  term  of  six  months  after  the 
date  of  conviction.  If  the  husband  neglects 
to  comply  with  the  terms  of  his  bond  the 
selectmen  of  the  town  shall  furnish  support 
to  the  wife  and  children  to  the  extent  pro- 
vided for  in  such  bond. 

In  the  State  of  Delaware,  for  failure  to 
support  his  wife  and  minor  children  a  man 
may  be  fined  from  ten  to  one  hundred  dol- 
lars. By  another  law  the  husband  may  be 
arrested  and  required  to  give  bail  of  not 
more  than  five  hundred  dollars.  The  court 
may  order  him  to  pay  to  his  wife  a  reason- 
able support,  not  exceeding  one  hundred 
dollars  a  month,  and  to  give  security  to  the 
State  for  the  performance  of  this  duty. 

In  Florida,  if  any  husband  having  the 
ability  to  maintain  or  to  contribute  to  the 
maintenance  of  his  wife  or  minor  child  shall 
fail  to  do  so,  the  wife,  living  with  him  or 
a]3art  from  him  through  his  fault,  may  ob- 
tain such  a  maintenance  or  contribution  upon 
a  bill  being  filed  and  a  suit  prosecuted  as  in 
other  chancery  causes.  In  Georgia  the  hus- 
band nmst  furnish  the  necessaries  suitable  to 
his  condition  in  life.  The  same  is  true  in  the 
State  of  Illinois.  In  this  State,  however,  the 
husband  has  the  same  right  of  support  out  of 
the  wife's  property.     A  failure  to  support 


THE  RIGHT  OF  A  WIFE  TO  SUPPORT  43 

wife  and  children  under  twelve  years  of  age 
is  a  misdemeanor,  and  may  be  punished 
by  a  "fine  not  less  than  one  hundred  nor 
more  than  five  hundred  dollars,  or  imprison- 
ment in  the  county  jail,  house  of  correction, 
or  workhouse  not  less  than  one  month  or 
more  than  twelve  months,  or  both  such  fine 
and  imprisonment. ' ' 

In  the  State  of  Indiana  a  wife  may  sue 
for  support,  first,  if  deserted  by  her  husband 
and  left  without  means  of  support ;  second,  if 
he  has  been  convicted  of  a  felony  and  put  in 
State's  prison;  third,  when  he  is  a  habitual 
drunkard ;  and,  fourth,  if  he  joins  a  religious 
society  prohibiting  marriage.  The  court  may 
award  necessary  support  to  the  wife  accord- 
ing to  circumstances;  it  may  order  the  sale 
of  the  husband's  lands,  or  it  may  allow  the 
wife  to  sell  her  lands  without  her  husband 
joining. 

The  State  of  Iowa  has  declared  that  the 
support  and  education  of  the  family  are 
chargeable  equally  on  the  husband  and  wife 's 
property.  In  Kansas  the  husband  is  obliged 
by  law  to  support  his  wife  according  to  his 
means.  If  he  fails  to  support  her  she  may 
have  alimony  decreed  to  her  by  the  court 
where  the  cause  exists  for  which  a  divorce 
may  be  granted.  In  Kentucky,  while  the  hus- 
band is  expected  to  furnish  the  necessaries 
according  to  his  condition  in  life,  yet  if  he 


44  WOMAN   AND   THE   LAW 

has  no  property  except  his  wages  there  does 
not  appear  to  be  any  legal  provision  whereby 
he  can  be  punished  for  non-support.  The  law 
of  Louisiana  obliges  a  husband  to  furnish 
his  wife  with  whatever  is  required  for  the 
convenience  of  life  in  proportion  to  his 
means  and  condition.  By  the  Maine  law,  if 
the  husband  lives  apart  from  his  wife  and 
children,  and  if  the  separation  was  without 
fault  of  the  wife,  the  court  may  order  him 
to  make  reasonable  contribution  toward  the 
support  of  his  wife  and  family,  and  enforce 
obedience  by  appropriate  decrees.  In  Mary- 
land non-support  is  a  misdemeanor,  and  can 
be  punished  by  a  fine  of  not  more  than  one 
hundred  dollars  or  by  imprisonment  in  the 
county  jail. 


THE  GUARDIANSHIP  OF  CHILDREN 

THE  use  of  mothers  equally  with  fathers 
in  the  guardianship  of  minor  children 
is  seen,  by  a  study  of  American  legislation, 
to  be  a  recent  development,  and  the  use  ob- 
tains at  the  present  time  in  only  seven  of  the 
States— namely,  Colorado,  Kansas,  Maine, 
Nebraska,  New  York,  Pennsylvania,  and 
Rhode  Island.  In  the  remaining  States  the 
preference  is  given  to  the  father. 

In  Colorado  both  parents  are  declared  to 
be  joint  guardians,  with  equal  powers.  In 
Kansas  the  father  and  mother  are  declared 
the  natural  guardians,  and  if  either  dies  or 
is  incapable  of  acting  in  such  a  capacity, 
the  natural  guardianshii^  devolves  upon  the 
other  parent.  In  case  of  the  death,  absence, 
or  incapacity  of  the  father,  the  mother  may 
appoint  a  guardian  of  the  property  of  a 
minor  child,  if  deemed  suitable  by  the  court. 
In  Nebraska  the  last  surviving  parent  may 
be  by  will  appointed  a  guardian  for  any  of 
the  children,  whether  born  at  the  time  of  the 
making  of  the  will  or  afterward.  In  New 
York  the  conditions  of  guardianship  were 
made  equal  in  the  year  1860;  the  law  was 
repealed  in  1862,  and  was  reenacted  in  1893. 

45 


46  WOMAN  AND   THE  LAW 

In  Pennsylvania,  since  1895,  the  mother  is 
made  equal  guardian  of  a  minor  child  if  she 
contributes  by  her  labor  or  otherwise  to  its 
support. 

Among  the  other  States  there  is  the  usual 
diversity  of  provisions  creating  unequal 
rights  of  guardianship  between  father  and 
mother. 

In  Alabama  the  father  may  by  will  ap- 
point a  guardian  for  a  minor  child,  but  such 
an  appointment  must  be  claimed  within  six 
months  after  the  will  is  admitted  to  probate. 
Otherwise  the  mother  is  entitled  to  the  cus- 
tody of  the  person  of  the  ward,  if  a  girl, 
until  she  is  eighteen  years  of  age;  if  a  boy, 
until  he  is  fourteen  years.  In  Arkansas  the 
mother  is  entitled  to  the  guardianship  of  a 
minor  child  only  if  the  father  is  not  living, 
having  custody  of  both  the  person  and  the 
property  of  the  ward,  unless  the  proi)ert>^  is 
derived  elsewhere  than  from  the  mother. 

The  law  in  Arizona  is  remarkable.  The 
father,  if  living,— if  not,  the  mother  while 
she  remains  unmarried  and  if  suitable,— is 
entitled  to  the  guardianship  of  a  child.  A 
guardian  of  the  person  or  property,  or  both, 
of  a  child  born,  or  likely  to  be  born,  may  be 
nominated  by  will  or  deed  to  take  effect  upon 
the  deatli  of  the  parent  so  nominating:  first, 
if  the  child  is  legitimate,  by  the  father  with 
the  written  consent  of  the  mother,   or  by 


THE  GUARDIANSHIP  OF  CHILDREN  47 

either  parent  if  the  other  is  dead  or  incapable 
of  acting ;  second,  if  the  child  is  illegitimate, 
by  the  mother.  In  California,  if  the  father  is 
not  living,  the  mother,  while  she  remains  un- 
married and  if  suitable,  is  entitled  to  the 
guardianship  of  the  child.  In  Connecticut, 
if  the  father  is  not  living,  the  mother  may  be 
appointed  guardian;  also  if  she  has  been 
abandoned  by  her  husband.  The  parents 
may  appoint  a  guardian  by  will  who  would 
be  entitled  to  the  guardianship  if  living,  but 
if  the  custody  of  a  child  has  been  given  to 
the  mother  by  the  Supreme  Court  or  the 
General  Assembly,  she  alone  has  the  power 
of  appointing  a  guardian  by  will. 

In  Delaware  the  father  alone  may  appoint 
a  guardian  by  his  will.  The  same  is  the  rule 
in  Florida.  In  Georgia  the  mother  is  the 
guardian  only  if  the  father  is  dead.  He  may 
appoint  by  will,  and  so  may  the  mother  if 
widowed,  but  only  for  such  children  as  have 
no  guardian  and  as  to  such  property  as  they 
may  inherit  from  her.  In  Idaho  the  law  is 
the  same  as  in  Arizona.  In  Illinois  the  fa- 
ther may  appoint  a  guardian  by  his  will  for 
a  child  born,  or  likely  to  be  born,  provided 
that  no  such  appointment  shall  deprive  the 
mother  of  the  custody  and  tuition  of  the 
child  without  her  consent,  if  she  be  a  fit  per- 
son to  have  such  a  charge.  The  mother,  if 
widowed  and  sane,  may  appoint  a  guardian 


48  WOMAN  AND  THE  LAW 

by  her  will.  In  Kentucky,  the  father  may 
appoint  a  guardian  by  his  will  for  his  infant 
child,  and  may  select  a  different  one  for  the 
estate  and  for  the  nurture  and  education. 
The  court,  in  making  the  appointment,  shall 
choose  the  father,  or  his  testamentary  ap- 
pointee ;  then  the  mother,  if  unmarried ;  then 
the  next  of  kin,  giving  preference  to  the 
males.  By  the  code  of  Louisiana,  the  mother 
only  becomes  a  guardian  upon  the  death  of 
the  father.  If  the  mother  marries  again,  her 
second  husband  becomes  guardian,  and  the 
mother  loses  all  right  to  appoint  any  other 
guardian  by  her  will.  A  mother  in  Mary- 
land is  the  guardian  only  if  the  father  is 
dead  and  did  not  appoint  a  guardian  by  his 
will.  In  Massachusetts  the  mother  is  guar- 
dian only  if  she  is  so  appointed  by  the  court 
in  the  case  of  a  legal  separation  or  a  divorce. 
In  Michigan,  the  father  is  guardian,  if  liv- 
ing. He  may  also  appoint  a  guardian  by 
will,  but  if  the  mother  is  living  she  may  pre- 
sent objections  before  the  appointment  is 
confirmed  by  the  judge  of  probate,  and  such 
an  appointment  may  be  appealed.  The 
mother  may  ap]:)oint  a  guardian  by  her  will, 
if  the  father  did  not  do  so  by  his. 

The  law  of  Montana  declares  that  as  be- 
tween parents  claiming  guardianship,  "nei- 
ther parent  is  entitled  to  it  as  of  right,"  but, 
other  things  being  equal,  if  the  child  be  of 


THE  GUARDIANSHIP  OP  CHILDREN  49 

tender  years  it  should  be  given  to  the  mother, 
and  if  it  be  of  an  age  to  require  education 
and  preparation  for  labor  or  business,  then 
to  the  father. 

In  New  Jersey  the  father  is  guardian  of 
the  estate  of  a  minor,  but  he  cannot  convey 
any  portion  of  the  estate  without  the  moth- 
er's consent.  In  the  case  of  a  separation, 
and  no  misconduct  on  either  side,  the  rights 
of  father  and  mother  are  held  to  be  equal 
after  a  child  is  seven  years  of  age.  If  a 
widow,  the  mother  is  guardian.  In  South 
Dakota  the  father  is  guardian,  and  has  the 
custody  of  the  person  and  services  of  a 
minor  child,  but  he  cannot  transfer  such  a 
custody  to  any  one  except  the  mother  with- 
out her  written  consent,  unless  she  has  de- 
serted him  or  is  living  apart  from  him  by 
an  agreement.  In  Texas,  if  the  parents  live 
together  the  father  is  the  natural  guardian 
of  the  persons  of  the  minor  children,  and  is 
entitled  to  be  appointed  the  guardian  of  their 
estates.  If  the  parents  do  not  live  together, 
their  rights  of  guardianship  are  equal,  and 
may  be  assigned  to  either  parent  for  the  good 
of  the  children. 


THE  ADOPTION  OF  CHILDREN 

BY  far  the  larger  number  of  adoptions  of 
children  in  the  United  States  are  under- 
taken by  married  and  single  women.  The 
legal  aspects,  therefore,  of  this  institution 
come  properly  within  a  study  of  the  legal 
rights  and  obligations  of  American  women, 
and  are  of  no  less  practical  importance  than 
many  other  themes. 

Adoption  is  the  act  by  which  relations  of 
maternity  or  paternity  and  affiliation  are 
recognized  as  legally  existing  between  per- 
sons not  so  related  by  nature.  The  legal 
institution  of  adoption  is  not  recognized  by 
the  common  law,  and  exists  in  the  United 
States  only  by  force  of  special  statutes. 
Statutes  providing  for  adoption  have  been  en- 
acted in  almost  all  of  the  States  of  the  Union. 
Generally,  any  woman  being  an  inhabitant 
of  the  State  and  twenty-one  years  of  age  may 
adopt.  The  adoptor  must  be  forty  years  of 
age  in  Louisiana ;  competent  to  make  a  will, 
in  Iowa.  If  tlie  adoptor  has  a  wife  or  hus- 
band, he  or  she  must  consent  or  join  in  the 
petition  or  other  instrument,  if  comi^etent,  in 
the  States  of  New  Hampshire,  Massachu- 

50 


THE  ADOPTION  OF   CHILDREN       51 

setts,  Maine,  Vermont,  Rhode  Island,  Con- 
necticut, New  York,  New  Jersey,  Ohio, 
Illinois,  Michigan,  Wisconsin,  Minnesota, 
Delaware,  Kentucky,  Missouri,  California, 
Oregon,  Nevada,  Colorado,  Washington,  the 
Dakotas,  Idaho,  Utah,  and  Louisiana.  In 
Massachusetts  and  Louisiana  the  person 
adopted  must  l^e  younger  than  the  person 
adopting ;  and  it  must  be  a  child  in  the  States 
of  New  Hampshire,  Maine,  Rhode  Island, 
Pennsylvania,  Illinois,  Wisconsin,  Minne- 
sota, Nebraska,  Delaware,  Missouri,  Oregon, 
Nevada,  Colorado,  Utah,  Alabama,  Florida, 
Louisiana,  and  the  Territory  of  New  Mexico. 
No  w^oman  can  adopt  her  own  husband  in 
Massachusetts ;  or  her  own  child  in  Illinois, 
Wisconsin,  Iowa,  Minnesota,  and  Washing- 
ton; or  a  brother  or  sister,  whether  of  the 
whole  or  half  blood,  or  an  uncle  or  aunt  in 
Massachusetts;  nor  a  man  his  illegitimate 
children,  whom  the  law  prohibits  him  from 
acknowledging,  in  Louisiana.  By  the  law  of 
the  State  of  Nevada  no  Mongolian  can  either 
adopt  or  be  adopted.  It  would  seem  by  the 
law  of  Illinois  that  only  an  orphan  can  be 
adopted,  or  a  child  both  of  whose  parents 
have  deserted  it  for  at  least  one  year.  In 
New  Jersey,  Idaho,  and  Louisiana  the  per- 
son adopting  must  be  at  least  fifteen  years 
older  than  the  person  adopted,  and  at  least 
ten  years  older  in  California,  Nevada,  and 


52  WOMAN   AND   THE   LAW 

the  Dakotas.  In  North  Carolina  an  adoption 
may  be  made  either  for  life  or  during  the 
minority  of  the  child. 

The  mode  of  adoption  provided  by  statute 
in  most  of  the  States  is  by  petition  to  the 
probate  or  other  like  court,  reciting  the  ne- 
cessary facts.  A  decree  is  made  by  the  court, 
based  upon  these  facts,  which  judicially  con- 
fers upon  the  child  the  capacity  to  inherit, 
and  all  other  incidents  of  the  status  author- 
ized by  the  statute  of  the  particular  State. 
This  is  distinctly  a  judicial  procedure,  in- 
volving the  rendering  of  a  judgment  by  the 
court  by  which  the  new  status  of  the  child  is 
determined.  In  any  case,  whether  a  judgment 
of  adoption  be  granted  is  discretionary  with 
the  court.  In  some  of  the  States  adoption  is 
effected  by  a  mere  deed  stating  the  fact  of 
adoption,  signed  and  sealed,  acknowledged 
before  a  judge,  and  recorded  with  the  clerk 
of  probate  or  register  of  deeds  for  the  county 
where  the  person  adopting  resides.  This  is 
the  law  in  the  States  of  Pennsylvania,  Mis- 
souri, Wyoming,  and  Alabama,  and  in  the 
Territory  of  New  Mexico. 

The  consent  of  the  child  or  other  person 
to  be  adopted  must  in  most  of  the  States  be 
obtained  if  such  ])erson  be  over  fourteen 
years  of  age,  or  over  twelve  years  of  age  in 
the  States  of  New  York,  California,  Nevada, 
the  Dakotas,  Idaho,  and  Arizona.    In  order 


THE  ADOPTION  OF   CHILDREN       53 

to  constitute  a  valid  adoption  under  the  stat- 
utes, the  written  consent  of  a  child's  natural 
parents  must  be  obtained,  if  living,  or  the 
consent  of  the  survivor,  if  one  is  dead,  pro- 
vided that  they  are  known  and  not  hopelessly 
intemperate  or  insane,  and  have  not  aban- 
doned the  child.  In  the  State  of  New  York 
the  necessity  for  consent  or  notice  to  a  pa- 
rent is  dispensed  with  if  such  parent  has 
been  deprived  of  civil  rights;  and  the  same 
rule  holds  in  Rhode  Island  and  Oregon, 
where  such  parent  is  put  in  prison  for  more 
than  three  years.  Many  of  the  statutes, 
while  requiring  the  consent  of  one  spouse  to 
the  adoption  of  a  child  by  the  other,  fail  to 
authorize  expressly  the  joint  adoption  by 
husband  and  wife.  But  wherever  adoption 
proceedings  have  been  attacked  on  the 
ground  of  being  an  attempt  at  joint  adop- 
tion, a  proceeding  that  the  statute  did  not 
authorize,  such  an  adoption  has  been  held 
valid.  A  child  adopted  by  a  woman  in  one 
State  in  accordance  with  the  laws  of  that 
State  while  she  was  domiciled  there,  will 
after  removal  into  another  be  recognized  as 
the  legal  child  of  the  adopting  parent  in  the 
latter  State  for  the  purpose  of  inheriting 
property  there. 

As  a  rule,  the  name  of  the  person  adopted 
may  be  changed  by  the  decree,  deed,  or  other 
instrument  to  that  of  the  person  adopting, 


54  WOMAN   AND   THE  LAW 

and  the  general  effect  of  adoption  is  to  put 
the  parties  in  the  relation  of  parent  and  child, 
with  all  of  the  legal  consequences.  The  nat- 
ural parents  are  so  divested  of  all  their  legal 
rights  in  respect  to  the  child.  In  many  of 
the  States  the  adopting  parent,  or  the  person 
adopted,  by  his  next  friend  may  appeal  to 
the  Superior  or  Supreme  Court  to  have  the 
decree  of  adoption  set  aside.  The  statutes 
of  some  of  the  States  provide  that  a  parent 
who  has  not  given  his  or  her  consent  to  adop- 
tion proceedings  and  was  not  served  with  a 
notice  may  appeal  from  the  decree  of  adop- 
tion within  a  specified  time.  It  has  been 
ruled  that  where  the  mother  of  the  child  is  a 
party  to  adoption  proceedings,  and  gives  her 
consent  to  the  same,  the  father  who  has  aban- 
doned the  child  is  not  entitled  to  notice  of 
the  proceedings,  nor  is  his  consent  to  the 
adoption  necessary. 


DIVORCE 

BY  a  divorce  is  understood  an  action  at 
law  by  which  the  parties  to  a  marriage 
are  put  back  into  the  position  of  single  per- 
sons, except  so  far  as  their  rights  of  prop- 
erty, remarriage,  etc.,  may  be  affected, 
without  necessarily  rendering  their  children 
illegitimate  or  their  marriage  invalid  while  it 
lasted.  An  absolute  divorce  is  in  most  of  the 
States  termed  a  divorce  a  vinculo, or  from  the 
' '  bond ' '  of  marriage,  or  simply  a  divorce  in 
those  States  in  which  no  action  for  a  limited 
divorce  is  recognized.  The  State  of  South 
Carolina  has  no  divorce  laws,  although  in  a 
few  cases  marriages  may  be  annulled.  There 
are  at  the  present  time  in  the  aggregate  of 
the  legislation  of  the  several  States  a  total 
of  forty-two  recognized  causes  for  which  an 
absolute  divo'rce  may  be  granted,  although 
no  one  State  happily  recognizes  even  one 
half  of  this  number.  In  many  of  the  States 
divorces  may  be  obtained  for  causes  that  in 
other  States  are  recognized  as  grounds  for 
having  a  marriage  annulled  or  declared  void. 
If  we  omit  such  causes,  there  appear  to  be 

55 


56  WOMAN  AND   THE  LAW 

six  grounds  that  are  generally  recognized  as 
causes  for  a  divorce— namely,  adultery,  cru- 
elty, desertion,  drunkenness,  imprisonment 
on  conviction  of  crime,  and  neglect  to  pro- 
vide. 

So  varied  and  confusing  is  the  legislation 
of  the  several  States  with  reference  to  di- 
vorce that  any  general  grouping  of  the  States 
on  a  classification  of  causes  is  unsatisfac- 
tory, and  a  consideration  of  the  condition  of 
the  law  in  each  State  becomes  necessary  to 
a  proper  treatment  of  this  subject. 

ALABAMA 

In  this  State  a  divorce  may  be  granted  to 
either  the  husband  or  the  wife  for  the  causes 
of  adultery,  impotency,  voluntary  abandon- 
ment for  a  period  of  two  years,  imprison- 
ment for  a  x^eriod  of  two  years  in  a  State 
penitentiary,  the  sentence  being  for  a  term 
of  seven  years  or  longer,  and  crimes  against 
nature,  committed  either  before  or  after  mar- 
riage. To  a  husband  a  divorce  may  be  granted 
because  of  the  pregnancy  of  the  wife  at  the 
time  of  the  marriage  without  either  his 
agency  or  his  knowledge.  To  a  wife  a  di- 
vorce may  be  granted  because  of  the  habitual 
drunkenness  of  tlie  husband,  if  the  habit  did 
not  exist  at  the  time  of  the  marriage  to  the 
wife's  knowledge,  and  also  for  actual  vio- 


DIVORCE  57 

lence  committed  upon  her  by  the  husband 
sufficient  to  cause  danger  to  life  or  health, 
or  for  conduct  that  causes  a  reasonable  ap- 
prehension of  such  violence. 

If  the  defendant  to  an  action  for  a  divorce 
is  not  a  resident  of  the  State,  the  plaintiff 
must  have  resided  within  the  State  for  a 
period  of  one  year. 

TEEKITORY    OF    AEIZONA 

A  DivoECE  may  be  granted  to  either  a  hus- 
band or  a  wife  for  the  causes  of  adultery, 
voluntary  abandonment  for  six  months,  ex- 
cesses, cruel  treatment  or  outrages  toward 
the  other  by  personal  violence  or  by  any 
other  means,  and  a  conviction,  after  mar- 
riage, of  a  felony  and  imprisonment  in  any 
prison.  No  suit  for  divorce,  however,  can 
be  begun  until  six  months  after  a  final  judg- 
ment of  conviction,  and  neither  party  shall 
have  been  convicted  upon  the  testimony  of 
the  other,  and  no  pardon  subsequently 
granted  shall  interfere  with  a  right  to  secure 
a  divorce. 

A  divorce  may  be  granted  to  a  wife  be- 
cause of  the  husband's  habitual  intemper- 
ance for  a  period  of  six  months,  or  because 
of  the  husband's  wilful  neglect  to  provide 
for  his  wife  the  necessaries  and  comforts  of 
life  for  a  period  of  six  months,  when  he  has 


58  WOMAN  AND   THE   LAW 

the  ability  to  provide  the  same,  or  fails  to  do 
so  b}^  reason  of  his  idleness,  profligacy,  or 
dissipation.  The  plaintiff  must  have  been  a 
bona-fide  resident  of  the  Territory,  and  a 
resident  for  six  months  next  i)reeeding  in  the 
county  where  the  suit  is  brought.  Marriage 
may  be  declared  void  for  impotency,  or  for 
any  other  impediment  that  renders  the  mar- 
riage contract  invalid  from  the  beginning. 

ABKANSAS 

A  DIVORCE  may  be  granted  to  either  a  hus- 
band or  a  wife  for  the  causes  of  adultery, 
bigamy,  impotency,  wilful  desertion  for  a 
period  of  one  year  without  reasonable  cause, 
conviction  of  a  felony  or  other  infamous 
crime,  habitual  drunkenness  for  a  period  of 
one  year,  and  barbarous  treatment  that  en- 
dangers life,  or  such  personal  indignities  as 
to  render  the  condition  of  the  applicant  in- 
tolerable. In  1895,  insanity  developing  after 
marriage  as  a  ground  for  a  divorce  was  re- 
pealed. 

The  plaintiff  in  an  action  for  a  divorce 
must  have  resided  within  the  State  for  a 
period  of  one  year.  The  cause  for  divorce 
must  have  occurred  within  the  State,  or,  if 
without  the  State,  it  must  have  been  a  legal 
ground  for  a  divorce  where  it  did  occur,  or 
the  residence  of  the  plaintiff  must  then  have 


DIVORCE  59 

been  in  that  other  State.  In  any  case,  the 
cause  must  have  occurred  within  five  years 
of  the  time  the  action  is  brought. 

We  note  also  that  in  this  State  five  years' 
absence,  unheard  from,  be^^ond  the  limits  of 
the  State  is  a  legal  justification  for  a  second 
marriage.  Marriages  are  declared  to  be  void 
for  consanguinity,  and  also  when  contracted 
between  persons  of  the  white  and  black  races. 
Marriages  may  be  declared  null  and  void  for 
consent  obtained  by  force,  for  lack  of  legal 
age,  for  lack  of  understanding,  or  for  physi- 
cal incapacity. 

CALIFORNIA 

In  this  State  the  causes  for  a  divorce  are 
adultery,  extreme  cruelty,  wilful  desertion  or 
wilful  neglect  for  a  period  of  one  year,  and 
conviction  of  a  felony.  A  wife  who  has  been 
deserted  may  bring  an  action  against  her 
husband  for  the  separate  maintenance  of  her- 
self and  her  children,  without  seeking  a  di- 
vorce, if  she  prefers  to  do  so. 

The  plaintiff  must  have  been  a  resident  of 
the  State  for  a  period  of  one  year,  and  of  the 
county  in  which  the  action  is  brought  three 
months  next  preceding  the  commencement 
of  the  suit.  Fraud  on  the  part  of  the  wife 
regarding  her  pregnancy  cannot  be  made  a 
ground  for  a  divorce ;  neither  can  any  false 


60  WOMAN  AND   THE  LAAV 

representations  on  the  part  of  the  husband  as 
to  his  character  or  property.  A  marriage 
may  be  annulled  for  bigamy,  for  impotency, 
or  for  unsoundness  of  mind  at  the  time  of 
the  marriage;  also  for  a  want  of  legal  con- 
sent to  the  marriage,  and  for  a  consent  ob- 
tained by  force  or  fraud. 

COLORADO 

The  causes  for  a  divorce  in  this  State  are 
adultery,  bigamy,  impotency,  wilful  deser- 
tion for  a  period  of  one  year  without  a  rea- 
sonable cause,  wilful  desertion  and  departure 
from  the  State  without  an  intention  of  re- 
turning, habitual  drunkenness  for  a  period 
of  one  year,  conviction  of  a  felony  or  other 
infamous  crime,  extreme  cruelty,  the  failure 
of  the  husband  for  a  period  of  one  year, 
being  in  good  bodily  health,  to  make  a  rea- 
sonable provision  for  the  support  of  his 
family. 

The  plaintitf  must  have  resided  for  a  pe- 
riod of  one  year  within  the  State,  except 
when  the  grounds  for  the  divorce  are  adul- 
tery or  extreme  cruelty  when  committed 
within  the  State,  providing  that  the  suit  shall 
be  brought  within  the  county  in  which  such 
plaintiff  or  defendant  resided  or  in  which  the 
defendant  last  resided. 

The  court  may  in  its  discretion  reopen  a 


DIVORCE  61 

case  within  a  period  of  one  year  upon  good 
reason  shown  by  a  defeated  party.  Neither 
party  can  remarry  before  the  expiration  of 
one  year. 

CONNECTICUT 

The  grounds  for  a  divorce  are  adultery, 
fraud  in  the  contract  of  marriage,  a  wilful 
desertion  and  total  neglect  for  a  period  of 
three  years,  a  seven  years'  absence  unheard 
from,  intolerable  cruelty,  habitual  intemper- 
ance, a  sentence  of  imprisonment  for  life, 
and  any  infamous  crime  involving  a  viola- 
tion of  conjugal  duty  and  punishable  by  im- 
prisonment in  the  State  prison. 

The  plaintiff  must  have  resided  for  a  pe- 
riod of  three  years  within  the  State  unless 
the  cause  for  the  divorce  shall  have  arisen 
subsequently  to  the  removal  into  the  State  or 
unless  the  defendant  shall  have  continuously 
resided  within  the  State  for  a  period  of  three 
years  next  before  the  date  of  the  complaint, 
and  actual  service  shall  have  been  made  upon 
him,  or  unless  the  cause  is  habitual  intem- 
perance or  intolerable  cruelty,  and  the  plain- 
tiff was  domiciled  within  the  State  at  the 
time  of  the  marriage  and  before  bringing  the 
complaint  has  returned  to  this  State  with  an 
intention  of  permanently  remaining. 

Whenever,  for  any  cause,  a  marriage  is 
void,  the  Superior  Court  may,  upon  com- 


62  WOMAN  AND   THE  LAW 

plaint,  issue  a  decree  declaring  such  a  mar- 
riage void,  and  may  take  such  order  regard- 
ing the  care  of  any  children  and  alimony  as 
it  may  make  in  a  suit  for  divorce. 

DELAWARE 

In  this  State  the  causes  for  an  absolute  di- 
vorce are  adultery,  desertion  for  a  period 
of  three  years,  habitual  drunkenness,  impo- 
tency,  extreme  cruelty,  a  conviction  either  in 
or  out  of  the  State,  after  marriage,  of  a  crime 
that  is  classed  as  a  felony  by  the  laws  of  the 
State  of  Delaware,  whether  such  a  crime 
shall  have  been  perpetrated  before  or  after 
marriage.  An  absolute  or  a  limited  divorce 
may  be  granted,  in  the  discretion  of  the  court, 
if  in  the  procurement  of  a  marriage  there 
was  a  lack  of  sufiicient  age  of  either  party, 
if  such  a  marriage  has  not  been  voluntarily 
ratified  after  both  of  the  parties  have  attained 
the  legal  age,  or  for  a  wilful  neglect  on  the 
part  of  the  husband,  for  a  period  of  three 
years,  to  provide  the  wife  with  the  neces- 
saries of  life  suitable  to  her  condition. 

A  divorce  obtained  by  an  inhabitant  of 
the  State  of  Delaware  in  another  State,  but 
for  a  cause  that  occurred  in  Delaware  or  for 
a  cause  which  would  not  be  a  ground  for  a 
divorce  in  Delaware,  is  of  no  effect  within 
that  State.    Nor  can  a  divorce  be  decreed  if 


DIVORCE  63 

the  cause  arose  out  of  the  State  and  at  the 
time  the  petitioner  was  not  a  resident  of 
Delaware,  unless  for  the  same  or  a  like  cause 
a  divorce  would  be  granted  in  the  State  or 
country  where  it  occurred. 

A  husband  or  a  wife  divorced  for  adul- 
tery may  not  marry  the  person  with  whom 
the  crime  was  committed.  Marriages  may 
be  annulled  for  consanguinity  or  affinity,  or 
when  between  whites  and  negroes  or  mulat- 
toes,  or  for  bigamy,  or  when  either  party  at 
the  time  of  the  marriage  was  insane. 

DISTRICT   OF    COLUMBIA 

An  absolute  divorce  may  be  granted  for  big- 
amy, lunacy,  or  impotency  at  the  time  of 
marriage,  for  adultery,  habitual  drunken- 
ness for  a  period  of  three  years,  extreme  cru- 
elty endangering  life  or  health,  and  for  wil- 
ful desertion  and  abandonment  for  a  period 
of  two  years.  Either  a  limited  or  an  abso- 
lute divorce  may  be  granted  for  cruelty  or 
upon  evidence  to  the  satisfaction  of  the  court 
of  a  reasonable  apprehension  of  bodily  harm. 
If  the  cause  for  divorce  occurred  outside  of 
the  District,  the  plaintiff  must  have  lived 
within  the  District  for  a  period  of  two  years 
next  preceding  the  bringing  of  the  suit. 
Marriages  are  void  within  the  prohibited  de- 
grees of  relationship  and  because  of  lunacy. 


64  WOMAN  AND   THE  LAW 

FLORIDA 

No  limited  divorce  may  be  granted  in  this 
State.  A  wife  may  sue  for  alimony,  without 
a  divorce,  if  any  cause  for  a  divorce  other 
than  bigamy  exists,  and  she,  at  the  time,  is 
living  apart  from  her  husband. 

The  causes  for  a  divorce  are  adultery,  big- 
amy, impotency,  desertion  for  a  period  of 
one  year  that  is  obstinate  and  wilful,  ex- 
treme cruelty,  habitual  intemperance,  habit- 
ual indulgence  in  a  violent  and  ungovernable 
temper,  where  the  parties  are  within  the  pro- 
hibited degrees  of  relationship,  and  also 
where  the  defendant  has  obtained  a  divorce 
in  any  other  State.  The  plaintiff  must  have 
resided  within  the  State  for  a  period  of  two 
years  next  prior  to  the  commencement  of  the 
suit. 

GEORGIA 

In  this  State  the  causes  for  an  absolute  di- 
vorce are  adultery,  wilful  desertion  for  a 
period  of  three  years,  cruel  treatment,  habit- 
ual intoxication,  the  marriage  of  persons  who 
are  within  the  prohibited  degrees  of  rela- 
tionship, mental  incapacity,  impotency  at  the 
time  of  the  marriage,  any  fraud,  force,  men- 
ace, or  duress  in  obtaining  the  marriage,  a 
conviction  and  an  imprisonment  for  a  term 
of  two  years  or  more  for  a  crime  involving 


DIVORCE  65 

moral  turpitude,  and  also  the  pregnancy  of 
the  wife  at  the  time  of  the  marriage  without 
the  husband's  agency  or  knowledge. 

One  year's  residence  within  the  State  is 
necessary  for  the  petitioner.  The  trial  of  a 
suit  for  a  divorce  is  by  a  jury,  and  the  ver- 
dict may  be  for  either  a  total  or  a  limited 
divorce.  A  total  divorce,  however,  can  be 
secured  only  if  two  juries,  at  different  terms 
of  the  court,  unite  in  a  verdict  in  favor  of  it. 
The  second  jury,  by  its  verdict,  settles  the 
division  of  property. 

The  marriage  of  persons  who  are  legally 
unable  to  contract  may  be  declared  void  on 
grounds  of  consanguinity,  impotency,  lu- 
nacy, lack  of  age,  force,  or  fraud. 

IDAHO 

The  grounds  for  a  divorce  are  adultery,  ex- 
treme cruelty,  a  wilful  desertion  for  a  period 
of  one  year,  wilful  neglect  or  habitual  in- 
temperance for  a  period  of  one  year,  a  con- 
viction of  felony,  and  permanent  insanity, 
provided  that  the  defendant  has  been  regu- 
larly confined  in  an  asylum  for  the  insane 
for  a  period  of  at  least  six  years  next  pre- 
ceding the  suit,  and  that  the  plaintiff  shall 
have  been  an  actual  resident  of  the  State 
for  six  years.  For  the  other  causes  a  resi- 
dence of  six  months  within  the  State  is  suffi- 
cient, 

5 


66  WOMAN  AND  THE  LAW 

Marriages  may  be  annulled  for  want  of 
age,  for  bigamy,  mental  unsoundness,  for 
consent  obtained  by  force  or  fraud,  and  for 
impotency  existing  at  the  time  of  the  mar- 
riage. 

ILLINOIS 

Divorce  may  be  obtained  for  adultery,  big- 
amy, impotency,  extreme  and  repeated  cru- 
elty, a  conviction  of  felony  or  other  infamous 
crime,  desertion  for  a  period  of  two  years 
without  any  reasonable  excuse,  or  an  attempt 
on  the  life  of  the  plaintiff  by  poison  or  other 
means  showing  malice.  The  plaintiff  must 
have  resided  within  the  State  for  one  year, 
unless  the  cause  occurred  within  the  State  or 
while  one  or  both  of  the  parties  resided  there. 
A  wife  may  sue  for  a  separate  maintenance 
without  a  divorce,  and  if  poor  she  may  sue 
without  cost.  Marriages  are  to  be  declared 
void  between  those  within  the  ])rohibited  de- 
grees of  kinship,  including  first  cousins,  and 
because  of  insanity  or  idiocy  at  the  time  of 
the  marriage. 

INDIANA 

The  causes  for  a  divorce  in  this  State  are 
adultery,  impotency,  cruel  and  inhuman 
treatment,  abandonment  for  a  period  of  two 
years,  conviction  after  marriage  of  infamous 
crime,  habitual  drunkenness,  and  the  failure 


DIVORCE  67 

of  the  husband  for  two  years  to  make  reason- 
able provision  for  his  family. 

The  plaintiff  must  have  been  a  resident  of 
the  State  for  a  period  of  two  years  and  of 
the  county  for  six  months  next  preceding  the 
suit. 

The  man  or  woman  obtaining  a  divorce 
cannot  marry  again  for  two  years,  during 
which  time  the  defendant,  for  a  just  cause, 
may  reopen  the  case.  Adultery  is  declared 
not  to  be  a  sufficient  ground  for  a  divorce, 
unless  the  petition  is  filed  within  two  years 
after  a  knowledge  of  the  fault. 

Marriages  that  are  prohibited  by  law  for 
consanguinity,  for  racial  differences,  or  mar- 
riages that  are  bigamous,  are  void,  without 
a  divorce  proceeding,  if  they  are  solemnized 
within  the  State. 

If  a  wife  is  deserted  and  her  husband  has 
property  she  may  sue  and  obtain  support ;  so 
also  if  her  husband  has  been  convicted  of  a 
felony  and  been  put  in  a  State  prison,  or  if 
he  is  an  habitual  drunkard,  or  if  he  joins  a 
religious  sect  the  creed  of  which  prohibits 
marriage. 

IOWA 

The  causes  for  a  divorce  are  adultery,  inhu- 
man treatment  that  endangers  life,  desertion 
for  a  period  of  two  years  without  a  reason- 
able cause,  a  conviction  of  a  felony  after  mar- 


68  WOMAN  AND  THE  LAW 

riage,  and  the  pregnancy  of  the  wife  at  the 
time  of  the  marriage  unknown  to  the  hus- 
band, unless  he  also  had  an  illegitimate  child 
living  at  the  time  of  the  marriage  unknown 
to  the  wife. 

The  plaintiff  must  have  resided  for  one 
continuous  year  within  the  State,  unless  the 
defendant  is  also  a  resident  and  has  been 
served  with  a  personal  notice  of  the  peti- 
tion. Marriages  may  be  annulled  for  impo- 
tency,  bigamy,  insanity  and  idiocy,  and  if 
prohibited  by  law  as  being  within  the  for- 
bidden degrees  of  relationship.  In  the  case 
of  a  bigamous  marriage,  if  the  husband  and 
wife  live  together  after  the  death  of  the  for- 
mer wife  or  husband  the  marriage  then  be- 
comes valid. 

KANSAS 

In  this  State  a  divorce  may  be  obtained  for 
the  causes  of  adultery,  bigamy,  impotency, 
an  abandonment  for  a  period  of  one  year, 
extreme  cruelty,  a  conviction  of  a  felony  and 
an  imprisonment  in  the  penitentiary  there- 
for, habitual  drunkenness,  gross  neglect  of 
duty,  fraud  in  the  marriage  contract,  and  the 
pregnancy  of  the  wife  at  the  time  of  the  mar- 
riage unknown  to  the  husband. 

The  plaintiff  must  have  resided  within  the 
State  for  a  period  of  one  year.  Neither  the 
husband  nor  the  wife  can  marry  again  until 
six  months  after  the  decree  of  divorce  is  pro- 


DIVORCE  69 

nounced,  during  which  period,  and  for  suffi- 
cient reason,  tlie  case  may  be  opened  again. 
A  wife  may  sue  for  alimony  without  a  di- 
vorce. A  marriage  may  be  declared  void  if 
either  party  is  incapable,  from  want  of  age 
or  understanding,  of  contracting  a  marriage. 
Marriages  are  prohibited  between  the 
white  and  the  colored  races,  also  if  bigamous, 
for  consanguinity,  also  with  idiots  or  luna- 
tics, if  either  of  the  parties  is  under  the  legal 
age,  and  also  when  not  solemnized  in  the 
presence  of  an  authorized  person  or  society. 

KENTUCKY 

The  causes  for  a  divorce  are  adultery,  im- 
potency,  an  abandonment  for  a  period  of  one 
year,  a  conviction  of  a  felony  either  in  or  out 
of  the  State,  force,  duress,  or  fraud  in  the 
marriage  contract,  a  loathsome  disease  con- 
cealed at  the  time  of  the  marriage  or  con- 
tracted afterward,  and  uniting  with  a  reli- 
gious society'  whose  creed  forbids  marriage. 
A  divorce  may  be  obtained  by  the  wife, 
when  not  in  a  like  fault,  for  a  confirmed  habit 
of  drunkenness  continuing  for  a  period  of 
one  year,  coupled  with  a  wasting  of  his  estate 
by  the  husband  and  a  failure  to  provide  a 
suitable  maintenance  for  his  wife  and  chil- 
dren; for  such  an  habitual  and  cruel  treat- 
ment for  a  period  of  six  months  as  indicates 
a  settled  aversion  toward  her  and  that  tends 


70  WOMAN  AND   THE  LAW 

to  destroy  permanently  her  peace  and  happi- 
ness; also  for  cruel  beating  or  injury  or  at- 
tempt at  injury,  indicating  an  ungovernable 
temper,  and  involving  a  probable  danger  to 
her  life. 

A  divorce  may  be  obtained  by  the  husband 
for  the  pregnancy  of  the  wife  at  the  time  of 
the  marriage  unknown  to  him,  for  such  lewd 
behavior  as  proves  the  wife  to  be  unchaste 
"without  actual  proof  of  an  act  of  adul- 
tery," and,  when  the  husband  is  not  in  like 
fault,  habitual  drunkenness  for  a  period  of 
one  year.  The  plaintiff  must  have  resided 
within  the  State  for  a  period  of  one  year. 
If  the  act  complained  of  occurred  outside  of 
the  State,  the  plaintiff  must  have  been  an  ac- 
tual resident  of  the  State  of  Kentucky  at 
the  time  of  its  occurrence,  unless  the  act  was 
also  a  cause  for  divorce  in  the  country  where 
it  occurred.  In  any  case,  an  action  must  be 
begun  within  five  years  of  the  occurrence  of 
the  offense. 

The  court  may  grant  a  limited  divorce  for 
any  cause  that  it  may  deem  sufficient.  Mar- 
riages are  void  and  are  prohibited  if  they 
are  bigamous. 

LOUISIANA 

An  immediate  and  absolute  divorce  may  be 
granted  for  the  two  causes  of  adultery  and 
a  sentence  to  an  infamous  punishment. 


DIVORCE  71 

For  the  other  causes— which  are  abandon- 
ment for  a  ])eriod  of  five  years,  habitual 
intem])erance,  excess,  cruel  treatment,  or  out- 
rages such  as  render  living  together  insup- 
portable, public  defamation,  or  attempts  on 
the  life  of  the  other— a  decree  of  temporary- 
separation  may  be  given,  which  may  be  fol- 
lowed by  a  decree  of  absolute  divorce  one 
year  later  if  no  reconciliation  has  in  the 
meantime  taken  place. 

When  the  ground  for  a  divorce  is  adultery, 
the  guilty  one  cannot  many  his  or  her  ac- 
complice, under  penalty  of  the  crime  of  big- 
amy and  of  a  decree  of  nullity  upon  the  new 
marriage.  Marriages  between  white  persons 
and  negroes  to  the  third  generation  are  void. 
An  absence  of  ten  years  unheard  from  is  a 
justification  in  law  for  contracting  a  second 
marriage. 

MAINE 

The  causes  for  a  divorce  are  adultery,  impo- 
tency,  extreme  cruelty,  an  utter  desertion  for 
three  consecutive  years  next  prior  to  the  fil- 
ing of  the  bill,  gross  and  confirmed  habits 
of  intoxication,  and  cruel  and  abusive  treat- 
ment. 

There  is  a  cause  to  the  wife  where  the  hus- 
band, being  of  sufficient  ability,  grossly  or 
wantonly  or  cruelly  refuses  or  neglects  to 
provide  a  suitable  maintenance  for  her.    The 


72  WOMAN  AND  THE  LAW 

parties  must  have  been  married  in  the  State 
or  lived  there  after  their  marriage,  or  the 
plaintiff  must  have  lived  there  when  the 
cause  occurred,  or  must  have  resided  within 
the  State  for  one  full  year  before  bringing 
suit.  The  marriage  of  persons  within  the 
prohibited  degrees  of  relationship,  marriage 
with  an  insane  person  or  an  idiot,  and  also 
bigamous  marriages,  if  solemnized  in  the 
State,  are  void. 

Marriages  between  a  white  person  and  a 
negro,  mulatto,  or  Indian  may  be  annulled, 
and  also  for  the  grounds  of  bigamy,  want  of 
legal  age,  and  insanity  or  idiocy  existing  at 
the  time  of  the  marriage. 

MARYLAND 

The  causes  for  a  divorce  are  adultery,  im- 
potency,  any  cause  which  by  the  laws  of  the 
State  renders  a  marriage  null  and  void,  an 
abandonment  for  a  period  of  three  years, 
and  illicit  intercourse  by  the  wife  before  the 
marriage,  unknown  to  the  husband  at  the 
time  of  the  marriage. 

A  limited  divorce  may  be  granted  for  ex- 
cessively vicious  conduct,  cruelty,  abandon- 
ment, and  desertion.  If  the  cause  occurred 
out  of  the  State,  the  plaintiff  or  the  defen- 
dant must  have  resided  within  the  State  for 
a  period  of  two  years  prior  to  the  beginning 
of  the  suit. 


DIVORCE  73 

A  wife  may  sue  for  alimony,  without  a 
divorce.  Marriages  may  be  declared  null  for 
the  causes  of  consanguinity  and  bigamy. 

MASSACHUSETTS 

A  DivoKCE  may  be  granted  for  adultery,  im- 
potency,  extreme  cruelty,  cruel  and  abusive 
treatment,  an  utter  desertion  for  a  period  of 
three  consecutive  years  next  prior  to  the  fil- 
ing of  the  bill,  gross  and  confinned  habits  of 
intoxication,  a  sentence  to  imprisonment  at 
hard  labor  for  a  term  of  five  years  or  more, 
notwithstanding  any  pardon  if  granted,  and 
uniting  with  any  religious  society  whose 
rules  forbid  marriage  and  continuing  with 
such  a  society  for  a  j^eriod  of  three  years 
without  the  consent  of  the  other  party. 

A  divorce  may  also  be  granted  on  the  libel 
of  the  wife  when  the  husband,  being  of  suffi- 
cient ability,  grossly  or  wantonly  and  cruelly 
refuses  or  neglects  to  provide  suitable  main- 
tenance for  her.  All  decrees  of  divorce  are 
nisi  in  the  first  instance,  but  they  may  be- 
come absolute  at  the  expiration  of  six  months 
on  the  apY-)lication  of  either  party  if  no  rec- 
onciliation has  taken  place  and  if  no  cause 
is  shown  by  any  one  why  the  absolute  decree 
should  not  be  granted.  The  parties  must 
have  lived  together  as  man  and  wife  within 
the  State,  or,  if  the  cause  occurred  elsewhere, 


74  WOMAN  AND  THE  LAW 

they  must  have  lived  together  in  the  State 
previously,  and  one  of  them  must  have  been 
a  resident  of  the  State  at  the  time  of  the  mar- 
riage, and  the  plaintiff  must  have  lived 
within  tlie  State  for  a  period  of  three  years 
next  prior  to  the  action,  unless  it  can  be 
shown  that  he  or  she  moved  into  the  common- 
wealth for  this  purpose.  Marriages  may  be 
declared  null  for  the  consanguinity  or  affin- 
ity of  the  parties,  for  nonage,  insanity, 
idiocy,  and  for  bigamy. 

MICHIGAN 

The  causes  for  an  absolute  divorce  are  adul- 
tery, impotency,  desertion  for  a  period  of 
two  years,  habitual  drunkenness,  imprison- 
ment for  a  term  of  three  years,  and  a  divorce 
obtained  in  another  State  by  the  other  party. 

A  limited  or  an  absolute  divorce,  in  the 
discretion  of  the  court,  may  be  granted  for 
extreme  cruelty,  whether  from  personal  vio- 
lence, desertion,  or  otherwise,  also  for  deser- 
tion for  a  period  of  two  years,  and,  to  the 
wife,  where  the  husband,  being  of  sufficient 
ability,  grossly  or  wantonly  and  cruelly  re- 
fuses or  neglects  to  provide  a  suitable  main- 
tenance for  her. 

A  sentence  to  im]irisonment  for  life  abso- 
lutely and  of  itself  dissolves  a  marriage  with- 
out any   decree  of   divorce.     The   plaintiff 


DIVORCE  75 

must  have  resided  within  the  State  for  a  pe- 
riod of  one  year  next  preceding  the  action, 
unless  the  marriage  took  place  within  the 
State  and  one  of  the  parties  had  resided  there 
ever  since.  If  the  cause  for  divorce  occurred 
outside  of  the  State,  one  of  the  parties  must 
have  resided  within  the  vState  for  a  period  of 
two  j^ears  next  prior  to  the  action. 

The  court  may  in  its  discretion  decree  that 
the  guilty  party  may  not  marry  again  for  a 
stated  time,  not  to  exceed  two  years.  Mar- 
riages may  be  declared  null  for  nonage,  if 
not  ratified  by  the  ]3arties  after  they  have 
obtained  full  legal  age,  and  for  consent  ob- 
tained by  force  or  fraud  if  never  ratified 
voluntarily. 

Marriages  are  void  without  a  divorce  if 
they  are  bigamous,  or  if  the  parties  are  within 
the  prohibited  degrees  of  relationship,  or  if 
performed  during  the  insanity  or  idiocy  of 
one  of  the  parties.  The  decree  of  divorce 
can  be  granted  unless  the  defendant  is  domi- 
ciled in  the  State  or  was  at  the  time  that  the 
cause  for  divorce  arose,  or  unless  the  de- 
fendant shall  have  been  personally  served 
with  process  in  the  State  or  with  a  copy  of 
the  order  of  publication  in  the  cause,  or  has 
voluntarily  appeared  in  the  action.  If  the 
defendant  did  not  live  within  the  State  at 
the  time  the  plaintiff  must  prove  that  the 
parties  have  lived  together  as  man  and  wife, 


76  WOMAN  AND   THE   LAW 

or  that  the  ]3laintiff  has  resided  in  the  State 
for  at  least  a  period  of  one  year,  in  good 
faith,  next  preceding  the  action. 

MINNESOTA 

The  causes  for  an  absolute  divorce  are  adul- 
tery, impotency,  cruel  and  inhuman  treat- 
ment, wilful  desertion  for  a  period  of  one 
year  next  preceding  the  filing  of  the  bill, 
habitual  drunkenness  for  a  period  of  one 
year  next  preceding  the  action,  and  a  sen- 
tence of  imprisonment  in  a  State  prison. 
The  plaintiff  must  have  resided  within  the 
State  for  a  period  of  one  year,  except  in  case 
of  adultery  committed  while  a  resident  of 
the  State. 

A  limited  divorce  may  be  given  to  the  wife 
for  cruel  and  inhuman  treatment,  or  such 
conduct  on  the  part  of  the  husband  as  may 
render  it  unsafe  or  improper  for  the  wife  to 
live  with  him,  and  for  his  abandonment  of 
the  wife  and  his  refusal  or  neglect  to  pro- 
vide for  her.  For  such  a  cause  both  of  the 
pai'ties  must  be  residents  of  the  State,  or  the 
marriage  must  have  taken  place  in  the  State, 
and  the  wife  be  an  actual  resident  at  the  time 
of  the  comi)laint.  If  a  divorce  be  sought  for 
the  adultery  of  the  wife,  her  own  real  estate 
may  bo  withhold  from  her. 

Marriages  between  persons  within  the  pro- 


DIVORCE  77 

liibited  degrees  of  relationship  and  bigamous 
marriages  are  absolutely  void.  Marriages 
may  be  pronounced  void  by  the  court  on  ac- 
count of  the  absence  for  a  period  of  five  years 
of  one  of  the  parties,  or  for  lack  of  legal 
age,  or  when  secured  by  force  or  fraud. 

MISSISSIPPI 

The  causes  for  a  divorce  are  adultery,  big- 
amy, impotency,  habitual,  cruel,  and  inhu- 
man treatment  accompanied  by  personal 
violence,  wilful  continuous  and  obstinate  de- 
sertion for  a  period  of  two  years,  habitual 
drunkenness,  a  sentence  of  imprisonment  in 
the  penitentiary,  the  pregnancy  of  the  wife 
at  the  time  of  the  marriage  unknown  to  the 
husband,  insanity  or  idiocy  at  the  time  of  the 
marriage,  and  the  relationship  of  the  parties 
within  the  degrees  of  consanguinity  and  af- 
finity' prohibited  by  law. 

The  plaintiff  must  have  resided  within  the 
State  for  a  period  of  one  year  before  filing  a 
bill  for  divorce.  If  the  cause  is  desertion, 
a  bona-fide  residence  for  a  period  of  two 
years  is  required.  If  in  the  case  of  a  person 
being  sentenced  to  serve  a  term  of  imj^ris- 
onment  in  a  penitentiary  a  pardon  is  secured 
before  the  person  is  sent  to  the  penitentiary, 
there  is  no  ground  then  for  a  divorce.  In 
case  the  ground  is  adultery,  the  court  may 


78  WOMAN  AND   THE  LAW 

forbid  the  offender  to  marry  again.  Mar- 
riages are  void  because  of  consanguinity,  and 
also  if  contracted  between  white  persons  and 
negroes  of  one  fourth  or  more  of  negro  blood. 

MISSOURI 

The  causes  for  a  divorce  are  adulterj'^,  big- 
amy, impotency,  such  cruel  and  barbarous 
treatment  as  endangers  the  life  of  the  other, 
an  absence  without  a  reasonable  cause  for  a 
period  of  one  year,  habitual  drunkenness  for 
a  period  of  one  year,  such  indignities  as  ren- 
der the  life  of  the  other  intolerable,  a  con- 
viction of  felony  or  other  infamous  crime 
after  marriage,  or  before  marriage  if  un- 
known to  the  other  party,  and  the  pregnancy 
of  the  wife  at  the  time  of  the  marriage  un- 
known to  the  husband. 

The  plaintiff  must  have  resided  within 
the  State  for  a  ])eriod  of  one  j^ear  next  prior 
to  the  action,  unless  the  offense  or  the  injury 
complained  of  was  committed  within  the 
State  or  while  one  or  both  of  the  parties 
resided  within  the  State.  If  a  husband  un- 
justly deserts  his  wife  and  the  wife  does  not 
wish  to  apply  for  a  divorce,  she  may  be 
granted  a  decree  of  the  court  providing  her 
with  a  maintenance  out  of  the  husband's 
propert}'',  and  also  authorizing  her  to  sell  her 
real  property  without  securing  his  signature, 


DIVORCE  79 

and  ' '  ordering  any  person  holding  money  or 
other  personal  estate  to  which  the  husband  is 
entitled  in  her  right  to  pay  and  deliver  the 
same  to  the  wife. ' ' 

Marriages  are  void  for  bigamy  and  for 
relationship  within  the  prohibited  degrees  of 
consanguinity  and  between  persons  of  the 
white  and  colored  races. 

MONTANA 

The  causes  for  a  divorce  are  adultery,  ex- 
treme cruelty,  wilful  desertion,  wilful  neg- 
lect and  habitual  intemperance,  each  con- 
tinued for  a  period  of  one  year,  and  also 
conviction  of  a  felony.  The  plaintiff  must 
have  resided  in  Montana  for  a  period  of  one 
year,  unless  the  offense  was  committed  while 
one  or  the  other  of  the  parties  resided  within 
the  State.  Unless  the  parties  to  a  divorce 
remarry  each  other,  the  innocent  part}^  can- 
not marry  again  within  a  period  of  two 
years,  nor  the  guilty  party  before  three  years. 
A  poor  woman  may  prosecute  a  suit  for  a 
divorce  without  costs.  Although  a  decree  of 
divorce  may  be  denied,  the  court  may  award 
a  maintenance  to  the  wife  and  her  children. 
Marriages  may  be  annulled  for  bigamy,  im- 
potency,  and  for  want  of  legal  age  if  the  mar- 
riage is  not  ratified  after  the  obtaining  of 
full  age.     Marriages  may  be  annulled  also 


80  WOMAN  AND   THE   LAW 

for  consent  obtained  by  force  or  fraud,  if  not 
voluntarily  ratified  after  the  discovery  of  the 
fraud. 

NEBRASKA 

The  grounds  for  an  absolute  divorce  are 
adultery,  impotency,  a  wilful  abandonment 
for  a  period  of  two  years,  habitual  drunken- 
ness, and  imprisonment  for  a  term  of  three 
years  or  for  life. 

An  absolute  or  a  limited  divorce,  in  the 
discretion  of  the  court,  may  be  granted  for 
extreme  cruelty,  desertion  for  a  period  of 
two  years,  or  when  the  husband,  being  of  suf- 
ficient ability  to  maintain  his  wife,  grossly 
or  wantonly  and  cruelly  refuses  or  neglects 
to  do  so.  The  plaintiff  must  have  resided 
within  the  State  for  a  period  of  six  months, 
except  where  the  marriage  was  performed  in 
the  State  and  the  plaintiff  has  resided  within 
the  State  from  that  time  until  the  time  of  the 
action.  Neither  party  to  an  action  for  a  di- 
vorce can  marry  before  six  months  has  ex- 
pired, during  which  time  the  proceedings 
may  be  opened  again.  Marriages  may  be 
declared  void  for  bigamy,  nonage,  insanity 
or  idiocy  at  the  time  of  the  marriage,  for 
consent  obtained  by  force  or  fraud,  for  rela- 
tionship within  the  prohibited  degrees  of 
consanguinity,  and  if  between  a  white  per- 
son and  a  negro  of  one  fourth  or  more  colored 


DIVORCE  81 

blood.  If  a  decree  of  divorce  is  granted  on 
the  ground  of  the  wife's  adultery,  "the  hus- 
band may  hold  such  of  her  personal  estate 
as  the  court  shall  deem  just  and  reasonable. ' ' 

NEVADA 

The  causes  for  a  divorce  are  adultery,  impo- 
tency,  extreme  cruelty,  wilful  desertion  for 
a  period  of  one  year,  habitual  gross  drunken- 
ness contracted  since  the  marriage  and  inca- 
pacitating the  person  from  contributing  to 
the  support  of  the  family,  a  conviction  of  a 
felony  or  infamous  crime,  and  the  neglect  of 
the  husband  to  provide  the  common  neces- 
saries of  life  for  a  period  of  one  year,  when 
such  a  neglect  could  be  avoided  by  ordinary 
industry  on  the  part  of  the  husband  and  is 
not  the  result  of  his  poverty. 

The  plaintiff  must  have  resided  within  the 
State  and  the  county  for  a  period  of  six 
months,  unless  the  action  is  brought  in  the 
county  where  the  defendant  resides  or  where 
the  cause  of  action  occurred. 

Marriages  are  prohibited  between  white 
and  colored  people,  mulattoes,  Indians,  and 
Chinese;  they  are  void  without  any  legal  ac- 
tion on  account  of  consanguinity  and  big- 
amy, and  may  be  declared  void  for  lack  of 
age  or  understanding,  if  not  subsequently 
ratified. 

6 


82  WOMAN  AND  THE  LAW 

NEW    HAMPSHIRE 

The  grounds  for  a  divorce  are  adultery,  im- 
potency,  extreme  cruelty,  treatment  seriously 
injuring  health,  treatment  endangering  the 
reason,  habitual  drunkenness  for  a  continu- 
ous period  of  three  years,  a  conviction  of  a 
crime  punishable  in  the  State  by  imprison- 
ment for  more  than  one  year  and  actual  im- 
prisonment under  such  a  conviction,  absence 
unheard  from  for  a  period  of  three  years, 
the  wilful  absence  of  the  husband  for  three 
years  without  making  provision  for  his  wife, 
the  wilful  absence  of  the  wife  from  the  State 
and  an  entire  separation  from  the  husband 
and  without  his  consent  for  ten  years,  resi- 
dence for  three  years  in  the  State  of  a  wife 
whose  husband  has  left  the  United  States  in- 
tending to  become  a  citizen  of  another  coun- 
try and  during  such  a  time  has  not  furnished 
his  wife  with  a  support  and  has  lived  entirely 
separate  from  her,  when  either  the  husband 
or  the  wife,  without  sufficient  cause  and  with- 
out the  consent  of  the  other,  has  abandoned 
and  refused  for  a  period  of  three  jeavs  to 
cohabit  with  the  other,  and  also  joining  any 
religious  sect  that  forbids  marriage  to  its 
members,  and  a  refusal  to  cohabit  for  a  pe- 
riod of  six  months. 

Both  of  the  parties  to  any  action  for  a 
divorce  must  reside  in  the  State,  or  the  plain- 


DIVORCE  83 

tiff  must  reside  there,  and  personal  service 
must  have  been  made  on  the  defendant 
within  the  State,  or  one  of  the  parties  must 
reside  within  the  State  and  one  of  them  must 
have  resided  in  the  State  one  year  next  prior 
to  the  action. 

NEW    MEXICO 

The  grounds  for  a  divorce  in  this  Territory- 
are  adultery,  cruel  and  inhuman  treatment, 
and  abandonment.  The  plaintiff  must  have 
resided  in  the  Territory  for  a  period  of  six 
months  next  prior  to  beginning  the  suit. 
Marriages  are  void  between  persons  within 
the  prohibited  degrees  of  relationship  and 
for  lack  of  age. 

NEW   YORK 

The  single  cause  for  an  absolute  divorce  in 
this  State  is  adultery.  Both  the  man  and  the 
woman  must  have  resided  in  the  State  when 
the  olf  ense  was  committed,  or  they  must  have 
been  married  in  the  State,  or  the  plaintiff 
must  have  been  resident  in  the  State  when 
the  offense  was  committed  and  when  the  ac- 
tion is  begun. 

The  plaintiff  can  marry  again,  but  the  de- 
fendant cannot  marry  within  the  State  dur- 
ing the  life  of  the  plaintiff,  except  to  the 
plaintiff,  unless  the  court,  after  a  period  of 
five  years,  modifies  the  decree  and  allows  the 


84  WOMAN  AND   THE  LAW 

defendant  to  many,  which  it  may  do  if  the 
plaintiff  has  in  the  meantime  married  again 
and  the  conduct  of  the  defendant  has  been 
uniformly  good.  The  defendant  may  re- 
marry in  another  State,  and  if  such  a  mar- 
riage is  valid  there  it  will  be  valid  in  the 
State  of  New  York. 

Bigamous  marriages  and  those  of  persons 
within  the  prohibited  degrees  are  void  with- 
out legal  process. 

NEW    JERSEY 

The  causes  for  an  absolute  divorce  are  adul- 
teiy,  bigamy,  impotency,  wilful  continued 
and  obstinate  desertion  for  a  period  of  two 
years,  and  the  marriage  of  persons  within 
the  prohibited  degrees  of  relationship. 

A  limited  divorce  may  be  granted  on  the 
ground  of  extreme  cruelty.  One  of  the  par- 
ties must  have  been  an  inhabitant  of  the 
State  at  the  time  the  cause  occurred,  or  the 
marriage  must  have  taken  place  in  the  State 
and  the  plaintiff  have  been  an  actual  resident 
iDoth  when  the  cause  occurred  and  when 
bringing  suit,  or  one  of  the  parties  must  be 
an  inhabitant  of  the  State  at  the  time  of 
bringing  the  action,  and  one  of  them  a  resi- 
dent during  the  period  of  two  years  in  which 
the  desertion  was  continued. 

If  the  cause  is  adultery,  and  it  was  com- 


DIVORCE  85 

mitted  in  the  State,  one  or  both  of  the  parties 
must  have  resided  there  at  the  time  of  bring- 
ing the  action;  if  committed  outside  the 
State,  one  of  the  parties  must  have  lived  in 
the  State  for  a  period  of  three  years  preced- 
ing the  beginning  of  the  action.  AVhen  im- 
potency  or  bigamy  exists  at  the  time  of  the 
marriage,  ''all  such  marriages  shall  be  in- 
valid from  the  beginning  and  absolutely 
void."  A  poor  person  may  sue  without 
costs. 

A  limited  divorce  may  be  given  for  cruel 
and  inhuman  treatment,  abandonment,  con- 
duct rendering  it  unsafe  and  improper  to 
live  with  the  defendant,  or  for  a  refusal  or 
neglect  on  the  part  of  the  husband  to  provide 
for  the  wife.  A  marriage  may  be  declared 
null  for  nonage,  bigamy,  impotency,  idiocy, 
insanity,  and  for  consent  obtained  by  fraud 
or  duress.  An  annulment  of  a  marriage  on 
the  ground  of  impotency,  which  must  be  in- 
curable, must  be  made  within  five  years  of 
the  time  of  the  marriage. 

NOETH    CAROLINA 

The  grounds  for  an  absolute  divorce  are  the 
separation  of  the  husband  from  the  wife  and 
open  living  in  adultery,  the  adultery  of  the 
wife  either  with  or  without  a  separation,  im- 
potency, the  pregnancy  of  the  wife  at  the 


86  WOMAN  AND   THE  LAW 

time  of  the  marriage  unknown  to  the  hus- 
band, and  an  indictment  of  the  husband  for 
a  felony  and  his  flight  from  the  State  and 
his  non-return  within  one  year. 

The  grounds  for  a  limited  divorce  are 
abandonment,  cruel  or  barbarous  treatment 
endangering  life,  such  indignities  to  the  per- 
son of  the  other  as  render  his  or  her  condi- 
tion intolerable  and  life  burdensome,  habitual 
drunkenness,  and  maliciously  turning  the 
other  out  of  doors.  The  cause  must  have  ex- 
isted for  at  least  six  months,  and  the  plain- 
tiff must  have  resided  in  the  State  for  a 
period  of  two  years  next  preceding  the  filing 
of  the  bill. 

A  wife  may  give  notice  that  she  intends  to 
sue  for  a  divorce  before  the  expiration  of  six 
months.  Marriages  may  be  declared  void 
for  consanguinity,  affinity,  ])igamy,  because 
between  white  x^ersons  and  negroes  or  In- 
dians, for  lack  of  age,  impotency,  or  mental 
incapacity  at  the  time  of  the  marriage. 

NOBTH    DAKOTA 

The  causes  for  a  divorce  are  adultery,  ex- 
treme cruelty,  wilful  desertion  or  wilful  neg- 
lect for  a  period  of  one  year,  habitual  intem- 
perance for  one  year,  and  a  conviction  of  a 
felony. 

The  plaintiff  must  have  been  a  resident  in 


DIVORCE  87 

good  faith  in  the  State  for  a  period  of  ninety 
days  next  preceding  the  commencement  of 
the  action. 

A  divorce  can  be  denied  if  an  unreasonable 
length  of  time  has  elapsed  between  the  cause 
assigned  and  the  beginning  of  the  suit.  Mar- 
riages may  be  annulled  for  bigamy,  unsound 
mind,  lack  of  age,  force,  fraud,  or  physical 
incapacity. 

When  a  divorce  is  granted  on  the  ground 
of  adultery,  the  innocent  party  may  marry 
again,  but  the  guilty  one  can  marry  only  the 
innocent  party  during  the  lifetime  of  that 
person. 

OHIO 

The  causes  for  divorce  are  adultery,  bigamy, 
impotency,  extreme  cruelty,  wilful  absence 
for  a  period  of  three  years,  a  sentence  and  an 
imprisonment  in  a  penitentiary  if  the  divorce 
is  asked  for  during  the  imprisonment,  a 
fraudulent  contract,  and  a  divorce  procured 
in  another  State  by  the  other  party,  the  effect 
of  which  is  to  leave  the  defendant  free  and 
the  plaintiff  still  bound.  The  plaintiff  must 
have  been  a  resident  of  the  State  for  one 
year. 

A  wife  may  sue  for  alimony  and  the  cus- 
tody of  her  children  without  a  divorce,  in 
which  case  a  residence  for  a  year  is  not  ne- 
cessary. 


88  WOMAN  AND  THE  LAW 

Marriages  are  prohibited  between  those 
who  are  nearer  than  second  cousins  and  if 
bigamous. 

OKLAHOMA 

The  causes  for  a  divorce  are  adultery,  big- 
amy, impotenc}^,  extreme  cruelty,  abandon- 
ment for  a  period  of  one  year,  habitual 
drunkenness,  gross  neglect  of  duty,  convic- 
tion of  a  felony  and  imprisonment  in  a  peni- 
tentiary subsequent  to  the  marriage,  a  fraud- 
ulent contract  of  marriage,  and  the  pregnancy 
of  the  wife  unknown  to  the  husband  at  the 
time  of  the  marriage. 

The  plaintiff  must  have  been  an  actual 
resident  in  good  faith  in  the  Territory  for 
ninety  days  next  preceding  the  filing  of  the 
bill,  and  a  resident  of  the  county  in  which  the 
action  is  brought  at  the  time  the  petition  is 
filed.  Neither  party  to  a  suit  for  divorce 
can  remarry  within  six  months,  nor  before 
thirty  days  after  judgment  is  rendered  by 
the  final  court  of  appeals. 

A  wife  may  sue  for  alimony  alone  if  any 
cause  exists  that  would  entitle  her  to  a  di- 
vorce. If  the  parties  appear  to  the  court  to 
be  equally  at  fault,  the  court  may  refuse  a 
divorce;  but  in  any  case  where  a  divorce  is 
refused  the  court  may,  for  good  cause  shown, 
take  such  order  as  will  be  proper  for  the  cus- 
tody and  maintenance  of  the  children  and  the 


DIVORCE  89 

equitable  division  of  the  property.  Mar- 
riages may  be  declared  void  for  physical  in- 
capacity, bigamy,  consent  obtained  by  the 
use  of  force  or  fraud,  and  if  within  the  pro- 
hibited degrees  of  relationship;  also  for  a 
lack  of  age  or  understanding,  if  not  ratified 
after  such  an  incapacity  ceases. 

OKEGON 

The  grounds  for  a  divorce  are  adultery,  im- 
potency,  cruel  and  inhuman  treatment  or 
personal  indignities  that  render  life  burden- 
some, a  habit  of  gross  drunkenness  con- 
tracted after  marriage  and  continued  for  a 
period  of  one  year  prior  to  the  suit,  a  con- 
viction of  a  felony,  and  wilful  desertion  for 
a  period  of  one  year. 

The  plaintiff  must  have  resided  in  the 
State  for  one  year.  Marriages  may  be  de- 
clared void  because  of  bigamy,  consanguin- 
ity, if  either  party  to  a  marriage  is  incapable 
of  assenting  thereto  either  for  want  of  legal 
age  or  because  of  insufficient  understanding, 
if  one  party  has  a  fourth  or  more  of  negro 
blood  while  the  other  is  white,  and  if  the 
consent  has  been  obtained  by  the  use  of  force 
or  fraud  and  the  contract  of  marriage  has 
not  been  subsequently  ratified.  Marriages 
are  void  between  first  cousins  of  the  whole 
or  half  blood. 


90  WOMAN  AND   THE  LAW 

PENNSYLVANIA 

The  causes  for  an  absolute  divorce  are  adul- 
tery, bigamy,  impotency,  wilful  desertion 
without  a  reasonable  cause  for  a  period  of 
two  years,  barbarous  treatment  by  the  hus- 
band endangering  the  life  of  the  wife,  or 
such  indignities  to  her  person  as  to  render 
her  condition  intolerable  and  her  life  bur- 
densome, thereby  forcing  her  to  withdraw 
from  the  house  and  family,  a  marriage  on  a 
false  rumor  of  the  death  of  the  husband  or 
wife  within  six  months  of  the  return  of  the 
same,  or  an  action  to  establish  the  lunacy  of 
a  wife  by  a  relation  or  best  friend  of  the 
wife,  marriage  procured  by  force,  fraud,  or 
coercion  and  not  subsequently  confirmed, 
marriage  within  the  prohil)ited  degrees  of 
consanguinity  or  affinity,  cruel  and  barbar- 
ous treatment  by  the  wife  rendering  the  con- 
dition of  the  husband  intolerable  and  his  life 
burdensome,  conviction  of  a  forgery  or  any 
infamous  crime  within  or  without  the  State, 
and  sentence  to  imprisonment  for  a  teim  of 
two  years,  providing  that  the  husband  or  the 
wife  makes  such  an  application  for  a  divorce 
and  that  the  crime  is  one  that  would  be  pun- 
ished by  imprisonment  for  a  term  of  two 
years  or  more  in  Pennsylvania. 

The  i)laintiff  must  have  resided  for  a  ]:)eriod 
of  one  year  in  the  State.    An  application  for 


DIVORCE  91 

a  divorce  may  be  made  six  months  after  de- 
sertion, although  a  decree  of  divorce  cannot 
be  granted  until  the  desertion  has  continued 
for  a  period  of  two  years.  If  a  divorce  is 
secured  in  another  State  and  the  defendant 
remains  in  the  State  of  Pennsylvania,  the  di- 
vorce is  not  valid  in  this  State. 

A  limited  divorce  may  be  secured  for  the 
causes  of  adultery,  the  abandonment  of  the 
wife  by  the  husband  for  a  period  of  two 
years,  turning  the  wife  out  of  doors,  cruel 
treatment,  and  personal  indignities. 

A  limited  divorce  may  also  be  secured  by 
a  woman  who  has  formerly  lived  in  the  State 
and  has  subsequently  married  elsewhere,  and 
where  the  cause  for  divorce  has  since  oc- 
curred in  that  other  State  or  country,  pro- 
vided that  notice  is  given  to  the  husband 
either  by  a  ]:)ersonal  service  or  a  registered 
letter  to  his  last  known  address,  and  that  the 
wife  has  lived  within  the  State  for  a  period 
of  one  year  next  prior  to  filing  her  bill. 

An  appeal  from  a  decision  granting  a  de- 
cree of  divorce  must  be  taken  within  one 
year. 

The  party  found  guilty  of  adultery  can- 
not marry  the  corespondent  during  the  life- 
time of  the  other  party.  If  any  divorced 
woman,  who  shall  have  been  found  guilt^^  of 
adultery,  shall  afterward  openly  cohabit  with 
the  person  proved  to  have  been  the  partaker 


92  WOMAN  AND   THE   LAW 

of  her  crime,  she  is  rendered  incapable  of 
alienating  either  directly  or  indirectly  any 
of  her  lands,  tenements,  or  hereditaments, 
and  all  wills,  deeds,  and  other  instruments  of 
conveyance  therefor  are  absolutely  void,  and 
after  her  death  her  property  descends  and  is 
subject  to  distribution  according  to  law  in 
like  manner  as  if  she  had  died  intestate. 
Marriages  are  declared  void  if  the  persons 
are  within  the  prohibited  degrees  of  consan- 
guinity and  if  bigamous. 

RHODE    ISLAND 

The  causes  either  for  an  absolute  or  a  lim- 
ited divorce  are  adultery,  im potency,  extreme 
cruelt^%  a  wilful  desertion  for  a  period  of 
five  years— or  for  a  shorter  period,  in  the 
discretion  of  the  court— living  entirely  apart 
for  a  period  of  ten  years,  continued  drunken- 
ness, the  habitual,  excessive,  and  intemperate 
use  of  opium,  morphine,  or  chloral,  a  con- 
viction for  the  crime  of  murder  or  arson  by 
which  the  person  convicted  is  deemed  to  be 
civilly  dead,  such  an  absence  or  other  cir- 
cumstance as  raises  the  presumption  of  natu- 
ral death,  the  neglect  or  refusal  of  the  hus- 
band, being  of  sufficient  ability,  to  provide 
necessaries  for  the  wife,  any  gross  misbe- 
havior and  wickedness  repugnant  to  and  in 
violation  of  the  marriage  contract,  a  mar- 


DIVORCE  93 

riage  void  or  voidable  at  law  from  the  time 
of  its  celebration. 

A  limited  divorce  may  be  given  for  such 
other  causes  as  may  seem  to  require  the  same. 
A  residence  in  the  State  for  a  period  of  one 
year  next  prior  to  the  filing  of  the  bill  is 
necessary.  Marriages  are  void  for  consan- 
guinit}^  bigamy,  idiocy,  and  limacy. 

SOUTH    CAKOLINA 

The  State  of  South  Carolina  does  not  grant 
a  divorce.  Marriages  are  void  between  per- 
sons of  the  white  and  colored  races,  for  con- 
sanguinity, idiocy,  lunacy,  want  of  consent 
if  the  contract  is  not  subsequently  ratified, 
and  for  bigamy,  unless  the  person  has  been 
absent  unheard  from  for  a  period  of  seven 
years. 

SOUTH    DAKOTA 

The  causes  for  a  divorce  are  adultery,  ex- 
treme cruelty,  wilful  desertion  or  wilful  neg- 
lect for  a  period  of  one  year,  habitual  intem- 
perance for  a  period  of  one  year,  and  a 
conviction  of  felony.  The  plaintiff  must 
have  been  a  resident  of  the  State  in  good 
faith  for  a  period  of  ninety  days  next  pre- 
ceding the  beginning  of  the  suit.  Marriages 
may  be  annulled  for  bigamy,  unsound  mind, 
lack  of  age,  force,  fraud,  or  physical  inca- 


94  WOMAN  AND   THE  LAW 

pacity.  If  a  divorce  is  granted  for  the  cause 
of  adultery,  the  guilty  one  cannot  marry  any 
one  except  the  other  while  the  other  lives. 

TENNESSEE 

The  causes  for  an  absolute  divorce  are  adul- 
tery, bigamy,  impotency,  a  wilful  or  a  mali- 
cious desertion  without  a  reasonable  cause 
for  a  period  of  two  years,  a  conviction  of  an 
infamous  crime  or  felony,  with  sentence  of 
confinement  in  a  penitentiary,  an  attempt  by 
one  on  the  life  of  the  other  bj^  poison  or 
other  means  showing  malice,  the  refusal  of 
the  wife  to  remove  with  her  husband  to  this 
State  without  a  reasonable  cause  and  wilfully 
absenting  herself  from  him  for  a  period  of 
two  years,  habitual  drunkenness  contracted 
after  marriage,  and  the  pregnancy  of  the 
wife  at  the  time  of  the  marriage  unknown  to 
the  husband. 

A  limited  or  an  absolute  divorce,  in  the 
discretion  of  the  court,  may  be  granted  to 
the  wife  for  such  cruel  and  inhuman  treat- 
ment toward  her  as  renders  it  unsafe  and 
improper  for  her  to  remain  under  the  domin- 
ion and  control  of  her  husband,  or  such  indig- 
nities to  her  person  as  render  her  condition 
intolerable,  thereby  forcing  her  to  leave  him, 
01'  al)andoning  or  turning  her  out  of  doors 
and  refusing  or  neglecting  to  provide  for  her. 


DIVORCE  95 

The  plaintiff  must  have  resided  in  the 
State  for  a  period  of  two  years  next  prior 
to  the  suit.  Marriages  are  void  for  consan- 
guinity, also  when  between  white  and  colored 
persons,  or  if  either  party  was  incapable  of 
consenting  to  the  contract  for  lack  of  age  or 
mental  incapacity,  or  if  consent  to  the  mar- 
riage was  obtained  by  force  or  fraud,  or  if 
it  was  a  bigamous  marriage. 

A  second  marriage  is  not  bigamous  if  the 
former  husband  or  wife  has  been  absent  for 
a  period  of  five  years  and  not  known  to  the 
other  to  be  living.  If  a  divorce  is  granted 
on  the  ground  of  a  wife's  adultery,  she  can- 
not alienate  her  lands  if  she  lives  openly  with 
her  accomplice,  and  at  her  death  they  descend 
as  if  she  died  intestate. 

TEXAS 

Theke  are  causes  for  divorce  in  favor  of  the 
husband  if  the  wife  commits  adultery,  or  if 
she  has  voluntarily  left  him  for  a  period  of 
three  years  with  an  intention  of  abandon- 
ment. There  are  causes  for  divorce  in  favor 
of  the  wife  when  the  husband  has  abandoned 
her  and  lived  in  adultery  with  another,  or  if 
he  leaves  her  for  a  period  of  three  years,  with 
intent  to  abandon. 

A  divorce  in  favor  of  either  party  may  be 
granted  for  such  excesses,  cruel  treatment, 


96  WOMAN  AND   THE  LAW 

or  outrages  as  render  living-  together  insup- 
portable, a  conviction  of  a  felony  after  mar- 
riage, except  when  the  conviction  was  ob- 
tained on  the  testimony  of  the  plaintiff  and 
unless  a  pardon  was  secured  within  twelve 
months  of  the  date  of  the  conviction.  The 
plaintiff  must  be  an  actual  resident  of  the 
State,  and  for  six  months  a  resident  of  the 
county  where  the  suit  is  brought. 

The  court  cannot  compel  either  party  to  a 
suit  for  divorce  to  transfer  real  estate  to  the 
other  part}^  Marriages  are  null  because  of 
impotency  at  the  time  of  the  marriage,  or 
because  of  any  other  impediment  that  ren- 
ders the  contract  of  marriage  void,  and  also 
if  between  white  persons  and  negroes. 

UTAH 

The  causes  for  a  divorce  are  adultery,  impo- 
tency, extreme  cruelty,  a  wilful  desertion  for 
a  longer  period  than  one  year,  habitual 
drunkenness,  a  conviction  of  a  felony,  and  a 
wilful  neglect  to  provide  the  wife  with  the 
connnon  necessaries  of  life.  An  actual  resi- 
dence for  a  period  of  one  year  in  the  State 
and  county  is  required. 

Marriages  are  void  for  consanguinity,  big- 
amy, idiocy,  lunacy,  lack  of  age,  or  if  be- 
tween a  person  of  the  white  race  and  a  negro 
or  Mongolian.    The  court  may  declare  a  mar- 


DIVORCE  97 

riage  void  if  obtained  by  force  or  fraud  and 
the  man  was  under  sixteen  years  of  age  and 
the  woman  under  fourteen  years,  the  parents ' 
consent  not  being  secured  and  the  marriage 
not  being  ratified  after  the  legal  ages  have 
been  attained. 

VERMONT 

The  causes  for  a  divorce  are  adultery,  intol- 
erable severity,  confinement  at  hard  labor  in 
State  prison  for  a  term  of  three  years  or 
more,  or  for  life,  when  actually  so  confined  at 
the  time  of  an  action  for  a  divorce,  a  wilful 
desertion  for  three  consecutive  years,  absence 
unheard  from  for  a  period  of  seven  years,  and 
gross  and  wanton  and  cruel  neglect  or  re- 
fusal to  provide  suitable  maintenance  for  the 
wife,  the  husband  having  sufficient  pecuniary 
or  physical  ability  to  make  such  a  provision. 
The  parties  must  have  lived  together  in 
the  State,  and  the  plaintiff  must  have  resided 
within  the  State  for  one  full  year  next  prior 
to  bringing  suit.  No  divorce  will  be  granted 
for  a  cause  which  occurred  in  another  State 
or  country  before  the  parties  lived  together 
in  the  State  of  Vermont  as  husband  and  wife, 
and  while  neither  party  was  a  resident  of 
the  State,  unless  the  libellant  shall  have  re- 
sided in  the  State  at  least  one  year  and  in 
the  county  when  the  libel  is  preferred  for  at 
least  three  months. 


98  WOMAN  AND   THE  LAW 

The  defendant  to  a  suit  for  a  divorce 
cannot  marry  again  until  three  years  have 
elapsed  after  a  divorce  is  granted,  if  the 
plaintiff  is  still  living,  unless  he  or  she  remar- 
ries the  plaintiff,  without  making  herself  or 
himself  liable  to  imprisonment  at  hard  labor 
in  a  State  prison  for  a  term  of  from  one  to 
five  years. 

Marriages  may  be  annulled  for  bigamy, 
impotency,  consanguinity,  nonage,  idiocy, 
lunacy,  and  for  consent  obtained  by  the  use 
of  force  or  fraud. 

VIRGINIA 

The  grounds  for  an  absolute  divorce  are 
adultery,  impotency,  a  sentence  to  the  peni- 
tentiary, without  regard  to  a  subsequent  par- 
don, a  conviction  of  either  party  of  an  infa- 
mous offense  before  marriage  unknown  to 
the  other,  when  either  is  charged  with  an 
offense  punishable  with  death  or  imprison- 
ment and  is  a  fugitive  from  justice  and  has 
been  absent  for  a  period  of  two  years,  or  if 
the  wife  has  been  a  prostitute  or  was  preg- 
nant before  marriage  unknown  to  the  hus- 
band, provided  that  in  these  last  two  cases 
and  in  that  of  a  conviction  of  an  infamous 
offense  the  injured  party  leaves  the  other  im- 
mediately upon  discovery  of  the  facts. 
A  limited  divorce  may  be  granted  for  cru- 


DIVORCE  99 

elty,  a  reasonable  apprehension  of  bodily 
hurt,  and  abandonment. 

One  of  the  parties  must  have  lived  in  the 
State  for  at  least  one  year  prior  to  the  action, 
and  one  must  be  domiciled  in  the  State  at 
the  time  of  bringing  suit.  Marriages  may 
be  annulled  for  bigamy,  impotency,  consan- 
guinity or  affinity,  lack  of  age,  insanity  at 
the  time  of  the  marriage,  and  if  between  per- 
sons of  the  white  and  colored  races.  The 
court  in  its  discretion  may  prohibit  a  party 
guilty  of  adultery  from  marrying  again. 
The  court  may  follow  a  decree  of  limited 
divorce  by  one  of  absolute  divorce  when  the 
desertion  has  existed  for  a  period  of  three 
years  and  there  is  no  probability  of  recon- 
ciliation. 

WASHINGTON 

The  grounds  for  a  divorce  are  adultery,  im- 
potency, cruel  treatment  of  either  by  the 
other,  or  personal  indignities  rendering  life 
burdensome,  abandonment  for  a  period  of 
one  year,  the  habitual  drunkenness  of  either 
party,  or  the  neglect  or  refusal  of  the  hus- 
band to  make  suitable  provision  for  his  fam- 
ily, the  imprisonment  of  either  party  in  a 
penitentiary  if  the  complaint  is  filed  during 
the  term  of  such  imprisonment,  when  the  con- 
sent to  the  marriage  was  obtained  by  force  or 
fraud  and  the  marriage  was  not  voluntarily 


100  AVOMAN  AND  THE  LAW 

ratified  afterward,  or  if  an  incurable  chronic 
mania  or  dementia  has  existed  for  a  period  of 
ten  years  or  more  the  court  in  its  discretion 
may  grant  a  divorce,  and  a  divorce  may  also 
be  granted  upon  the  application  of  either 
party  for  any  other  cause  deemed  by  the 
court  sufficient,  and  the  court  is  satisfied  that 
the  parties  can  no  longer  live  together.  On 
the  ground  of  adultery  application  for  a  di- 
vorce must  be  made  within  one  year  of  know- 
ledge of  the  offense.  The  plaintiif  must  have 
lived  in  the  State  for  one  year. 

A  new  marriage  cannot  be  contracted  until 
six  months  after  the  decree  of  divorce  is 
granted,  or,  if  an  appeal  is  taken,  until  judg- 
ment is  rendered  upon  the  appeal.  If  a  mar- 
riage is  contracted  either  within  or  without 
the  State  in  violation  of  these  provisions,  it 
is  void.  When  there  is  any  doubt  as  to  the 
facts  rendering  a  marriage  void,  either  party 
may  apply  for,  and  upon  proof  shown  obtain, 
a  decree  of  nullity. 

Marriages  that  would  be  bigamous  or  be- 
tween persons  within  the  forbidden  degrees 
of  relationship  are  prohibited. 

WEST    VIRGINIA 

The  grounds  for  an  absolute  divorce  are 
adultery,  impotency,  a  wilful  abandonment 
for  a  period  of  three  years,  a  sentence  to 


DIVORCE  101 

confinement  in  a  penitentiary,  a  conviction 
of  an  infamous  offense  before  marriage  un- 
known to  the  other  party,  the  pregnancy  of 
the  wife  at  the  time  of  the  marriage  without 
the  husband's  agency  or  knowledge,  when 
the  wife  prior  to  the  marriage  has  been  noto- 
riously a  prostitute  unknown  to  the  husband, 
or  where  the  husband,  unknown  to  the  wife, 
has  been  a  notoriously  licentious  person. 

A  limited  divorce  may  be  granted  for  cruel 
or  inhuman  treatment,  a  reasonable  appre- 
hension of  bodily  hurt,  desertion,  and  the 
habit  of  drunkenness  formed  since  marriage. 
In  a  case  where  a  limited  divorce  has  been 
granted  and  a  period  of  two  years  has  elapsed 
since  the  beginning  of  the  suit  without  a 
reconciliation  being  effected,  the  court,  upon 
the  application  of  the  injured  party  and  sat- 
isfactory evidence  submitted,  may  decree  an 
absolute  divorce  from  the  bonds  of  matri- 
mony, if  in  the  opinion  of  the  court  no  recon- 
ciliation is  probable. 

One  of  the  parties  to  an  action  for  a  di- 
vorce must  have  been  a  resident  of  the  State 
for  at  least  one  year,  and  the  action  must  be 
brought  in  the  county  where  the  parties  last 
lived  or  in  the  county  where  one  of  the  par- 
ties resides. 

Adultery  cannot  be  made  a  ground  for  a 
divorce  unless  action  is  taken  within  five 
years  of  the  time  the  offense  was  committed. 


102  WOMAN  AND   THE   LAW 

Marriages  performed  witliiu  the  State  may 
be  amiuUed  for  consanguinity  or  affinitj^,  big- 
amy, impotency,  insanity,  nonage,  or  misce- 
genation. 

WISCONSIN 

The  grounds  for  an  absolute  divorce  are 
adultery,  impotency,  cruel  and  inhuman 
treatment,  wilful  desertion  for  a  period  of 
one  year  next  preceding  the  bringing  of  the 
suit,  a  voluntary  separation  for  a  period  of 
five  years,  habitual  drunkenness  for  one  year 
next  preceding  the  bringing  of  the  suit,  when 
a  wife  is  given  to  intoxication,  and  also  a  sen- 
tence to  imprisonment  for  a  term  of  three 
years  or  more. 

A  limited  divorce  may  be  granted  for  a 
wilful  desertion  for  a  period  of  one  year,  or 
habitual  drunkenness  for  the  same  length  of 
time,  when  the  wife  is  given  to  intoxication, 
cruel  and  inhuman  treatment,  extreme  cru- 
elty, refusal  or  neglect  on  the  part  of  the  hus- 
band, being  of  sufficient  ability,  to  provide 
for  his  wife,  such  conduct  on  the  part  of  the 
husband  toward  the  wife  as  may  render  it 
unsafe  or  imjiroper  for  her  to  live  with  him. 

The  plaintiff  must  have  resided  within  the 
State  for  one  year  immediately  before  bring- 
ing the  suit,  unless  the  ground  is  adultery 
committed  while  the  plaintiff  resided  in  the 
State,  or  unless  the  marriage  was  performed 


DIVORCE  103 

in  the  State  and  the  plaintitf  has  resided 
there  from  that  time  until  the  action  is 
brought  by  tlie  wife,  and  the  husband  shall 
have  resided  in  the  State  for  one  year  next 
preceding  the  commencement  of  the  action. 

Marriages  of  persons  who  are  within  the 
prohibited  degrees  of  consanguinity^  and  also 
bigamous  marriages,  if  solemnized  in  the 
State,  are  absolutely  void  without  any  legal 
action.  A  decree  of  nullity  may  be  secured 
for  lack  of  age  or  mental  capacity,  also  when 
a  marriage  was  obtained  by  force  or  fraud 
and  has  not  been  voluntarily  ratified,  and 
when  either  party  to  a  marriage  is  impris- 
oned on  a  life  sentence. 

WYOMING 

The  grounds  for  a  divorce  are  adultery,  im- 
potency,  extreme  cruelty,  a  wilful  desertion 
for  a  period  of  one  year,  habitual  drunken- 
ness, a  conviction  of  felony  and  sentence  to 
imprisonment  after  marriage,  a  conviction  of 
felony  before  marriage  unknown  to  the  other 
party,  the  neglect  of  the  husband  for  a  period 
of  one  year  to  provide  his  wife  with  the  com- 
mon necessaries  of  life,  he  being  able  to  do 
so  by  ordinary  industry,  intolerable  indig- 
nities, the  vagrancy  of  the  husband,  and  the 
pregnancy  of  the  wife  at  the  time  of  the  mar- 
riage unknown  to  the  husband  and  without 


104  WOMAN   AND   THE   LAW 

his  agency.  The  plaintiff  must  have  resided 
six  months  in  the  State,  unless  the  marriage 
was  performed  in  the  State  and  the  plaintiff 
has  resided  there  from  that  time  until  bring- 
ing suit. 

A  marriage  is  void  without  a  decree  of 
nullity  on  account  of  bigamy,  consanguinity, 
or  mental  incapacity  at  the  time  of  its  cele- 
bration. A  marriage  may  be  decreed  void 
for  lack  of  age  if  the  parties  separate  before 
arriving  at  the  legal  age  and  do  not  live  to- 
gether afterward,  also  if  the  marriage  was 
obtained  by  the  use  of  force  or  fraud  and 
has  not  been  voluntarily  ratified.  Adultery 
will  not  serve  as  a  ground  for  a  divorce 
unless  the  suit  is  begun  within  three  years 
of  the  discovery  of  the  offense. 


LIMITED  DIVORCE 

OUR  policy  in  legislation  with  reference 
to  domestic  relations  allows  of  a  limited 
divorce  which  effects  the  separation  of  the 
parties  to  a  marriage  without,  however,  ac- 
knowledging a  right  of  remarriage  to  either 
party  during  the  lifetime  of  the  other  party. 

Limited  divorce  is  allowed  in  the  following 
States :  Alabama,  Arkansas,  Delaware,  Geor- 
gia, Kentucky,  Louisiana,  Maryland,  Michi- 
gan, Minnesota,  Nebraska,  New  Jersey,  New 
York,  North  Carolina,  Pennsylvania,  Rhode 
Island,  Tennessee,  Virginia,  West  Virginia, 
Wisconsin,  and  also  in  the  District  of  Colum- 
bia. It  is  to  be  noted,  however,  that  in  the 
States  of  Minnesota,  Pennsylvania,  and  Ten- 
nessee this  right  to  a  limited  divorce  exists 
in  favor  of  the  wife  only.  The  list  of  causes 
for  which  a  limited  divorce  may  be  secured 
is  very  nearly  as  long  as  the  list  of  causes 
for  absolute  divorce. 

Adultery  is  a  cause  in  the  States  of  Ala- 
bama, Arkansas,  Kentucky,  Louisiana,  Penn- 
sylvania, and  Rhode  Island.  The  pregnancy 
of  the  wife  at  the  time  of  the  marriage  and 
unknown  to   the  husband   is   cause   in   the 

105 


106  WOMAN  AND   THE  LAW 

States  of  Alabama  and  Kentucky.  The 
lewd  and  lascivious  behavior  of  the  wife  is 
cause  also  in  Kentucky.  Gross  misbehavior 
and  wickedness  in  violation  of  the  marriage 
covenant  is  a  cause  in  the  State  of  Rhode 
Island.  Crime  against  nature  is  a  cause  in 
the  State  of  Alabama.  The  concealment  of 
a  loathsome  disease  existing  at  the  time  of 
the  marriage  is  a  cause  in  the  State  of  Ken- 
tucky. Excessively  vicious  conduct  is  a  cause 
in  the  State  of  ]\[aryland.  Impotency  or 
physical  incapacity  at  the  time  of  the  mar- 
riage is  a  cause  in  the  States  of  Alabama, 
Arkansas,  Kentucky,  and  Rhode  Island. 

Abandonment,  desertion,  or  wilful  absence 
are  causes  for  a  limited  divorce  in  the  States 
of  Alabama,  Arkansas,  Kentucky,  Louisiana, 
Maryland,  Michigan,  Minnesota  (coupled 
with  refusal  or  neglect  to  provide  for  the 
wife),  Nebraska,  New  York,  North  Carolina, 
Pennsylvania,  Rhode  Island,  Tennessee,  Vir- 
ginia, West  Virginia,  and  Wisconsin. 

Disappearance— that  is,  such  an  absence 
as  will  cause  the  presumption  of  death— is 
a  cause  also  in  the  State  of  Rhode  Island; 
living  apart  or  voluntary  separation  is  a 
cause  in  the  State  of  Kentucky,  where  also 
there  is  a  cause  when  either  the  man  or  the 
woman  has  joined  a  religious  sect  in  which  it 
is  a  tenet  of  faith  that  marriage  is  unlawful. 

Cruelty,  actual  violence,  or  an  apprehen- 


LIMITED   DIVORCE  107 

sion  thereof,  inlmman  treatment,  etc.,  is  a 
cause  in  the  States  of  Alabama,  Arkansas, 
Georgia,  Kentucky  (in  favor  of  the  wife 
only),  Louisiana,  Maryland,  Michigan,  Min- 
nesota, Nebraska,  New  Jersey,  New  York, 
North  Carolina,  Pennsylvania,  Rhode  Island, 
Tennessee,  Virginia,  West  Virginia,  and 
Wisconsin. 

Indignities  rendering  the  condition  of  mar- 
riage intolerable  or  life  in  general  burden- 
some is  a  cause  in  Arkansas,  North  Carolina, 
Pennsylvania,  and  Tennessee;  in  the  last 
State,  however,  this  cause  must  be  coupled 
with  the  husband's  refusal  or  neglect  to  pro- 
vide for  the  wife.  Conduct  rendering  it  un- 
safe or  improper  for  the  parties  to  a  mar- 
riage to  live  together  is  a  cause  in  the  States 
of  Minnesota,  New  York,  Tennessee,  and 
Wisconsin,  where,  however,  it  is  a  cause  to 
the  wife  only.  The  failure  or  neglect  of  the 
husband  to  provide  for  the  wife  is  a  cause 
in  the  States  of  Delaware,  Michigan,  Minne- 
sota (coupled  with  an  abandonment  of  the 
wife),  Rhode  Island,  and  Wisconsin. 

Drunkenness,  intemperance,  or  intoxication, 
when  it  is  habitual,  is  a  cause  in  the  States 
of  Alabama,  Arkansas,  Georgia,  Kentucky, 
Louisiana,  North  Carolina,  Rhode  Island, 
West  Virginia,  and  Wisconsin.  The  State 
of  AVisconsin  has  also  a  cause  to  the  husband 
when  the  wife  is  given  to  intoxication. 


108  WOMAN  AND   THE  LAW 

A  conviction  for  a  felony  or  an  infamous 
crime  and  imprisonment  is  a  cause  in  the 
States  of  Alabama,  Arkansas,  Kentucky, 
Louisiana,  and  Khode  Island.  An  insanity 
that  is  permanent  and  incurable  occurring 
subsequent  to  the  marriage  is  a  cause  in  the 
State  of  Arkansas,  in  which  State,  also,  there 
is  a  cause  when  either  party  had  a  former 
husband  or  wife  living. 

In  the  State  of  Rhode  Island  a  limited  di- 
vorce may  be  secured  for  any  cause  render- 
ing the  marriage  originally  void  or  voidable. 
The  procurement  of  the  marriage  by  means 
of  force  or  fraud  is  a  cause  in  the  State 
of  Kentucky.  The  procurement  of  the  mar- 
riage when  either  party  was  under  the  age 
of  consent  is  a  cause  in  the  State  of  Delaware. 

An  attempt  by  either  the  man  or  the 
woman  upon  the  life  of  the  other  is  a  cause 
in  the  State  of  Louisiana,  where,  also,  public 
defamation  is  regarded  as  a  cause. 

The  State  of  Georgia  still  preserves  the 
historic  causes  on  any  ground  which  was  held 
sufficient  in  the  English  courts  prior  to  the 
fourth  day  of  ]\ray,  1784. 

The  States  of  Khode  Island  and  Kentucky 
vest  a  large  discretion  in  the  court,  allowing 
in  Kentucky  ''such  other  cause  as  the  court 
may  deem  sufficient,"  and  in  Rhode  Island 
"such  otlier  causes  as  may  seem  to  require 
the  same." 


DIVORCES  AMONG   THE   MORMONS 

THERE  are  two  kinds  of  divorce  recog- 
nized among  the  Latter-Day  Saints  or 
Mormons,  one  separating  the  man  and  the 
woman  for  the  period  of  this  life,  and  the 
other  for  the  future  life  also.  In  cases  where 
divorces  a  mensa  et  thoro  are  sought  from 
first  wives  or  from  legal  husbands,  the 
ordinary  civil  courts  of  the  State  are  used. 
Where,  however,  plural  wives  are  the  suitors, 
either  as  plaintitfs  or  defendants,  inasmuch 
as  they  cannot  appeal  to  the  civil  courts,  hav- 
ing no  legal  status  therein,  resource  is  had 
by  an  appeal  to  the  power  which  bound  them 
to  set  them  free.  The  President  of  the 
Church  of  Jesus  Christ  of  Latter-Day  Saints, 
being  invested  with  the  supreme  authority  to 
bind  in  marriage,  can  also  unloose. 

The  decree  of  divorce  granted  to  its  mem- 
bers by  the  Mormon  Church  is  an  outgrowth 
of  the  doctrine  of  plural  and  of  eternal  mar- 
riage, without  which  a  plural  wife  would  be 
without  a  remedy  for  a  condition  that  might 
become  intolerable.  As  the  jurisdiction  of 
the  civil  courts  extends  to  this  world  only, 
the  relief  afforded  by  such  a  court  in  the 

109 


110  WOMAN  AND   THE   LAW 

event  of  an  ill-assorted  spiritual  marriage 
would  be  very  inadequate,  as  a  decree  of 
divorce  granted  by  such  a  court  would,  ac- 
cording to  the  belief  of  the  Latter-Day  Saints, 
leave  the  marriage  still  in  force  for  the  fu- 
ture life.  So  men  and  women  who  have  been 
sealed  to  each  other  for  eternity,  and  have 
been  divorced  by  a  decree  of  a  civil  court, 
must,  if  they  desire  to  live  separate  from 
each  other  in  the  world  to  come,  have  their 
eternal  covenant  subsequently  unsealed  by 
ecclesiastical  authority.  The  practical  bear- 
ing of  these  church  divorces  on  the  lives 
of  Mormon  women  is  therefore  apparent. 
When  men  and  women  spiritually  married 
have  been  divorced  by  the  civil  courts  or  by 
the  church  for  this  world  only,  they  are  free 
to  marry,  but  only  for  this  world ;  when,  how- 
ever, they  are  divorced  by  the  church  for 
eternity  as  well,  thej  are  wholly  freed  from 
each  other.  The  causes  for  which  a  man  may 
obtain  a  church  divorce  from  his  wife,  either 
for  time  or  eternity,  or  for  both,  are  murder, 
adultery,  infanticide,  feticide— a  crime  that 
is  considered  even  more  heinous  than  the  vio- 
lation of  marriage  vows— and  incompatibil- 
ity of  temper  rendering  it  impossible  to  live 
together  harmoniously.  A  woman  may  be 
divorced  from  her  husband  for  any  of  these 
causes,  and,  in  addition,  for  impotency  exist- 
ing at  the  time  of  the  marriage  or  contracted 


DIVORCES  AMONG  THE  MORMONS  111 

subsequent  thereto,  cruel  treatment,  refusal 
or  neglect  to  support  her  and  her  children, 
or  injuries  of  any  kind  repeated  until  her 
love  is  turned  to  loathing.  The  Mormon 
Church  has  further  provided  that  should  a 
proof  of  crime  come  to  light  after  the  death 
of  one  of  the  parties  to  a  sealed  marriage, 
the  survivor  may  procure  a  church  divorce. 

The  ecclesiastical  divorces  can  be  granted 
only  by  the  president  of  the  church.  This 
official  grants  divorces  upon  the  application 
of  one  or  both  of  the  parties  interested  and 
the  recommendation  of  the  bishop  of  the 
ward  where  they  reside.  It  is  the  duty  of 
the  bishop  to  investigate  the  case  thoroughly, 
and  to  make  every  effort  to  bring  about  a 
settlement  of  the  difficulties. 

It  is  always  necessary,  of  course,  for  a  first 
wife  of  a  Mormon  to  be  divorced  by  the  civil 
courts,  if  at  all;  but,  according  to  the  law 
of  the  church,  permission  from  a  religious 
teacher  must  be  obtained  before  a  suit  is 
begun,  no  matter  whether  the  husband  or  the 
wife  is  the  plaintiff.  If  a  woman  thinks  that 
she  is  not  fairly  treated  in  the  settlement  of 
property  affairs,  she  may  complain  to  the 
teacher  of  the  ward  where  she  lives,  and  if 
the  teacher  thinks  that  her  complaint  is  well 
founded  he  lays  the  question  before  the 
bishop  who,  with  his  counselors,  tries  the 
case.    Should  this  court  find  in  favor  of  the 


112  WOMAN  AND  THE  LAW 

woman,  it  revises  the  property  settlements 
made  in  the  civil  court.  The  defeated  party 
has  a  right  of  appeal  to  the  high  council  of 
the  church  and  afterward  to  the  president 
of  the  church,  but  if  he  or  she  loses  the  case 
on  the  final  appeal  excommunication  will 
follow  any  further  resistance. 

The  decrees  of  divorce  granted  by  the 
church  are  in  the  form  of  a  covenant  between 
the  parties,  and  read  as  follows : 

Know  all  Persons  by  these  presents: 

That  we  the  undersigned,  and 

his  wife  (before  her  marriage  to  him  ), 

do  hereby  mutually  covenant,  promise,  and  agree 
to  dissolve  all  the  relations  which  have  hitherto 
existed  between  us  as  husband  and  wife,  and  to 
keep  ourselves  separate  and  apart  from  each  other 
from  this  time  forth. 

(Acknowledged.) 


ALIMONY 

ALIMONY  is  the  allowance  which  a  hus- 
.  band  pays,  by  an  order  of  court,  to  his 
wife  for  her  maintenance  while  living  apart 
from  her,  or  it  is  a  provision  that  is  or- 
dered for  the  maintenance  of  a  woman  who 
is  divorced  from  the  bond  of  matrimony  out 
of  the  estate  of  the  man  who  was  her  hus- 
band. Where  alimony  is  granted  in  connec- 
tion with  a  decree  of  divorce,  the  court  which 
has  jurisdiction  to  decree  the  divorce  has  also 
the  power  to  grant  alimony,  provided  that 
it  has  obtained  jurisdiction  of  both  the  par- 
ties to  the  suit ;  but  if  the  defendant  is  domi- 
ciled in  another  State  and  does  not  appear, 
no  alimony  can  be  granted  unless  he  has 
been  sued  with  process  within  the  jurisdic- 
tion of  the  court  or  appears  and  defends. 
When  a  wife  has  obtained  a  decree  of  divorce 
in  one  State,  with  w^hich  no  alimony  was 
granted,  she  has,  in  some  cases,  been  per- 
mitted to  obtain  from  the  court  having  juris- 
diction at  the  domicile  of  the  husband  a 
decree  allowing  alimony.  If  after  alimony 
has  been  decreed  by  the  court  the  husband 
moves  to  another  jurisdiction,  the  decree  can 

8  113 


114  WOMAN  AND  THE  LAW 

be  enforced  by  the  courts  of  the  latter  juris- 
diction or  by  the  United  States  courts.  A 
legislature,  in  granting  a  divorce,  cannot  give 
alimony,  but  the  jurisdiction  to  do  so  has 
been  given  by  statutes  or  assumed  by  the 
courts  in  a  large  number  of  the  States.  In 
those  States  in  which  jurisdiction  is  given  to 
the  courts  to  decree  this  maintenance  the  stat- 
ute which  grants  the  powder  as  a  rule  defines 
the  circumstances  under  which  the  court  may 
grant  it.  But  in  those  States  in  which  the 
courts  have  assumed  the  jurisdiction  as  one 
of  their  equitable  powers  the  circumstances 
that  are  regarded  as  necessary  to  entitle  a 
woman  to  receive  alimony  are  not  clearly 
defined.  Desertion,  leaving  the  wife  with- 
out means  of  support,  is  very  generally  rec- 
ognized as  a  sufficient  cause. 

Where  alimony  is  decreed  to  a  wife  during 
the  pendency  of  a  suit  for  a  divorce,  it  is 
called  alimony  pendente  lite.  This  form  of 
alimony  is  also  regulated  by  statute  in  most 
of  the  States  at  the  present  time.  The  mere 
pendency  of  the  suit  where  the  wife  has  no 
se])arate  means  sufficient  for  her  support  en- 
titles lier,  whether  she  is  plaintiff  or  defen- 
dant, to  alimony  so  long  as  the  litigation  con- 
tinues. This  form  of  alimony  is  usually 
made  up  of  a  sum  to  sup|Jort  the  wife  and  to 
pay  her  counsel  fees  and  the  other  expenses 
of  the  suit,  and  this  the  court  will  allow,  upon 


ALIMONY  115 

having  fhe  necessary  facts  presented  to  it,  al- 
most as  a  matter  of  course.  The  amount  is 
determined  by  no  fixed  rule,  being  in  the  dis- 
cretion of  the  court  in  view  of  the  circum- 
stances of  each  case.  Within  the  jurisdiction 
in  which  the  decree  of  alimony  was  granted, 
the  court  which  granted  it  is  the  proper  court 
to  enforce  it,  yet  if  the  j^arties  reside  in  dif- 
ferent States  it  may  be  enforced  by  the 
United  States  courts. 


CHANGE   OF  NAME  AFTER 
DIVORCE 

IN  the  States  and  District  named  below  the 
court  may  change  the  name  of  any  woman 
to  whom  a  divorce  is  granted:  Arizona,  Ar- 
kansas, Connecticut,  Georgia  (by  the  jury), 
Illinois,  Kansas,  Kentucky,  Massachusetts, 
Minnesota,  Missouri,  Nevada,  Ohio,  Oregon, 
Rhode  Island,  Texas,  Vermont,  and  Wash- 
ington, and  the  District  of  Columbia. 

In  Arizona,  the  District  of  Columbia,  Ore- 
gon, Texas,  and  Washington  the  name  of  the 
woman  may  be  changed  whether  the  divorce 
is  granted  on  the  application  of  the  wife  or 
not.  In  Arizona  and  Texas  the  court,  upon 
a  final  disposition  of  the  case,  may  make  a 
decree  changing  the  name  of  either  party,  if 
such  a  change  is  specially  prayed  for.  In 
Vermont  the  court  may  change  the  names  of 
the  minor  children  of  divorced  parents  when 
such  a  change  is  prayed  for  in  the  petition 
for  divorce. 


116 


UNIFORM   DIVORCE   LAW 

FOR  the  many  social  evils  that  arise  be- 
cause of  the  very  great  diversity  of  the 
divorce  laws  of  the  several  States  many  reme- 
dies have  been  suggested,  and  among  the 
most  practical  of  these  suggestions  is  one  for 
the  adoption  by  as  many  as  possible  of  the 
States  of  a  uniform  divorce  law. 

The  National  Commissioners  on  Uniform 
Laws,  a  body  in  which  many  if  not  all  of  the 
States  are  represented,  have  prepared  a  gen- 
eral law  upon  the  subject  of  divorce  which 
every  State  in  the  Union  will  be  asked  to 
adopt.  As  very  possibly  law  in  the  near  fu- 
ture this  suggested  statute  is  worthy  of  note 
in  the  study  of  the  legal  status  of  American 
women.    The  proposed  law  is  as  follows: 

Section  1.  No  divorce  shall  be  granted  for  any 
cause  arising  prior  to  the  residence  of  the  peti- 
tioner or  defendant  in  this  State  which  was  not  a 
ground  for  divorce  in  the  State  in  which  the  cause 
arose. 

Sec.  2.  No  person  shall  be  entitled  to  a  divorce 

for  any  cause  arising  in  this  State  who  has  not 

had  actual  residence  in  this  State  for  at  least  one 

year  next  before  bringing  suit  for  divorce,  with 

117 


118  WOMAN  AND  THE  LAW 

a  bona-iide  intention  of  making  this  State  his  or 
her  permanent  home. 

Sec.  3.  No  person  shall  be  entitled  to  a  divorce 
for  any  cause  arising  out  of  this  State  unless  the 
petitioner  or  defendant  shall  have  resided  within 
this  State  for  at  least  two  years  next  before 
bi'inging  suit  for  divorce,  with  a  bona-fide  inten- 
tion of  making  this  State  his  or  her  permanent 
home. 

Sec.  4.  No  person  shall  be  entitled  to  a  divorce 
unless  the  defendant  shall  have  been  personally 
served  with  process  if  within  this  State,  or  with 
personal  notice,  duly  authenticated,  if  out  of  this 
State,  or  unless  the  defendant  shall  have  entered 
an  appearance  in  the  case ;  but  if  it  shall  appear 
to  the  satisfaction  of  the  court  that  the  petitioner 
does  not  know  the  address  nor  the  residence  of 
the  defendant,  and  has  not  been  able  to  ascertain 
either  after  reasonable  and  due  inquiry  and  search 
continued  for  one  year,  the  court,  or  judge  in 
vacation,  may  authorize  notice  by  publication  of 
the  pendency  of  the  petition  for  divorce,  to  be 
given  in  the  manner  provided  by  law. 

Sec.  5.  No  divorce  shall  be  granted  solely  upon 
default,  nor  solely  upon  admissions  by  the  plead- 
ings, nor  except  upon  trial  before  the  court  in 
open  session. 

Sec.  6.  After  divorce  either  party  may  marry 
again,  but  in  cases  where  notice  has  been  given  by 
publication  only,  and  the  defendant  has  not  ap- 
peared, no  decree  for  divorce  shall  become  final 
or  operative  until  six  months  after  trial  and  de- 
cision. 

Sec.  7.  Wherever  the  word  "divorce"  occurs 
in  this  act  it  shall  be  deemed  to  mean  divorce  from 
the  bond  of  marriage. 


UNIFORM  DIVORCE  LAW  119 

Divorce  from  tlie  bond  of  marriage  shall 
be  granted  for  the  following  causes  arising 
after  marriage:  Adultery,  extreme  cruelty, 
habitual  drunkenness  or  the  confirmed  habit 
of  intoxication,  whether  arising  from  the  use 
of  alcoholic  drinks  or  drugs,  conviction  of 
felony  with  sentence  to  State  prison  or  peni- 
tentiary, and  continuous  desertion  for  at 
least  —  years ;  divorce  from  the  bond  of  mar- 
riage shall  not  be  granted  for  any  other  cause 
arising  after  marriage. 


Pakt  II 
PROPERTY  RELATIONS 


MARRIAGE  SETTLEMENTS 

A  MARRIAGE  settlement  is  an  agreement 
_  made  by  the  parties  in  contemplation 
of  marriage,  by  which  the  title  to  certain 
property  is  vested  and  the  property  to  some 
extent  becomes  inalienable.  In  most  of  the 
States  a  man  and  a  woman  may  by  a  mar- 
riage contract  made  before  marriage  stipu- 
late what  rights  each  shall  have  in  the  estate 
of  the  other  during  marriage  and  after  its 
dissolution  by  death,  and  bar  each  other  of 
all  rights  not  so  secured.  No  agreement 
made  before  marriage  can,  of  course,  destroy 
the  personal  rights  and  liabilities  of  the 
status  of  husband  and  wife.  So,  although 
before  his  marriage  a  husband  may  agree  to 
live  in  a  certain  place,  he  can  after  marriage, 
in  the  exercise  of  his  marriage  rights,  decide 
without  regard  to  his  agreement  upon  an- 
other place  of  residence  for  himself  and  his 
wife.  In  no  case  can  a  husband  and  wife 
enter  into  any  agreement  to  alter  the  legal 
orders  of  descent,  either  with  respect  to  them- 
selves or  in  what  concerns  the  inheritance  of 
their  children  or  posterity  which  either  may 
have  by  any  other  person,  or  in  respect  to 

123 


124  WOMAN  AND   THE  LAW 

their  common  children.  Nor  can  they  make 
a  valid  agreement  to  impair  the  legal  rights 
of  the  husband  over  the  person  of  the  wife 
or  the  persons  of  their  common  children. 

But  a  man  and  a  woman  who  are  about  to 
become  husband  and  wife  can,  by  contract, 
settle  the  precise  rights  they  shall  respec- 
tively have  in  their  own  and  each  other's 
property  during  their  married  life.  So,  also, 
third  persons  may  settle  property  on  them, 
in  consideration  of  their  marriage,  which 
they  will  hold  when  married,  subject  to  the 
terms  of  the  contract  they  have  made  and  not 
according  to  the  ordinary  laws  of  the  mar- 
riage estate. 

A  marriage  settlement  must  in  all  States 
be  in  writing,  and  in  the  States  of  Maine, 
Georgia,  Texas,  and  Ijouisiana  it  must  have 
at  least  two  witnesses.  It  need  not  contain 
technical  words,  and  it  need  only  appear  that 
there  is  an  enforceable  promise  in  regard  to 
marriage  rights  to  or  over  pro])erty  or  in 
consideration  of  marriage,  but  it  is  subject 
to  the  operation  of  all  the  general  laws  as 
to  the  recording  of  instruments  affecting 
rights  in  real  estate  or  in  personal  property. 

The  capacity  of  the  parties,  with  certain 
exceptions  as  to  age,  is  that  required  for  the 
execution  of  any  other  contract.  In  Massa- 
chusetts female  minors  of  the  age  of  eighteen 
years  may  join  with  their  guardians  in  mak- 


MARRIAGE   SETTLEMENTS  125 

ing  a  marriage  contract.  So  in  Texas,  Idaho, 
Louisiana,  and  Arizona  any  minor  legally 
capable  of  marrying  may  join  in  such  a  con- 
tract with  the  written  consent  of  both  parents 
or  the  guardian,  while  in  the  States  of  Cali- 
fornia, Nevada,  and  Georgia  any  minor  ca- 
pable of  contracting  marriage  may  make  a 
valid  marriage  contract  or  settlement. 

Any  fraud  or  concealment  by  one  party  as 
to  the  value  of  his  or  her  property  will  in 
all  the  States  render  a  marriage  settlement 
relating  thereto  voidable.  In  this  connection 
it  has  been  well  said  that  persons  about  to 
marry  "do  not,  like  buyer  and  seller,  deal  at 
arm's  length,  but  stand  in  a  confidential  rela- 
tion requiring  the  exercise  of  the  greatest 
good  faith." 

The  law  of  the  State  of  Louisiana  provides 
also  for  marriage  settlements  or  contracts  in 
contemplation  of  marriage.  Married  per- 
sons can  by  contract  make  to  each  other  re- 
ciprocally, or  the  one  to  the  other,  what  dona- 
tions they  may  think  proper,  under  certain 
conditions.  A  donation  of  property  in  future 
or  of  property  present  and  in  future  made 
between  married  persons  by  contract  is  not 
transmissive  to  the  children,  the  issue  of  the 
marriage,  in  case  of  the  death  of  the  donee 
before  the  donor.  Either  of  the  married  cou- 
ple may,  either  by  a  marriage  contract  or 
during  the  marriage,  give  to  the  other  in  full 


126  WOMAN  AND  THE  LAW 

property  all  that  lie  or  she  might  give  to  a 
stranger.  A  minor,  if  not  emancipated,  can 
give  only  with  the  consent  of  the  relations 
whose  consent  is  requisite  for  the  validity  of 
the  marriage,  but  with  that  consent  he  or  she 
can  give  all  that  the  law  permits  a  married 
person  of  full  age  to  give  to  his  or  her  con- 
sort. If  the  relations  whose  consent  is  neces- 
sary be  dead,  then  the  authorization  of  a 
court  of  justice  is  required.  All  donations 
made  between  married  persons  during  mar- 
riage may  be  revoked.  Such  a  revocation 
may  be  made  by  the  wife  without  her  being 
authorized  to  that  effect  by  her  husband  or 
by  a  court  of  justice.  Such  donations  are  not 
revoked  by  the  birth  of  children,  provided 
that  they  do  not  exceed  the  amount  which 
married  persons  are  permitted  to  dispose  of 
to  each  other,  to  the  prejudice  of  their  chil- 
dren or  their  legitimate  descendants. 

A  man  or  a  woman  who  contracts  a  second 
or  a  subsequent  marriage,  having  children 
by  a  former  marriage,  can  give  to  his  wife, 
or  she  to  her  husband,  only  the  least  child's 
portion,  and  that  only  as  a  usufruct— that  is, 
the  right  of  enjoying  the  profit  without  im- 
pairing the  substance— and  in  no  case  can 
the  portion  of  which  the  donee  is  to  have  the 
usufruct  exceed  a  fifth  part  of  the  donor's 
estate.  If  a  person  who  marries  a  second 
time  has  children  of  his  or  her  preceding 


MARRIAGE   SETTLEMENTS  127 

marriage,  he  or  she  cannot  dispose  of  the 
property  given  to  him  or  her  by  the  deceased 
spouse,  or  which  came  to  him  or  her  from 
a  brother  or  sister  of  any  of  the  children 
which  remain.  This  property  becomes  by 
the  second  marriage  the  property  of  the  chil- 
dren of  the  preceding  marriage,  and  the 
spouse  who  marries  again  has  only  the  usu- 
fruct of  it.  All  donations  disguised  in  any 
way  or  made  to  persons  interposed  shall  be 
null  and  void. 


DOWER 

IN  the  general  acceptance  of  the  word, 
* ' dower"  means  a  certain  estate  of  a  wife 
in  the  real  property  of  her  husband.  The 
law  entitling  a  wife  to  an  estate  of  dower  in 
the  lands  of  her  husband  had  for  its  object 
a  sure  and  competent  sustenance  for  the 
widow,  and  to  further  this  object  of  the  law 
the  courts  have  always  highly  favored  a 
widow's  claims  for  dower,  for,  as  the  great 
Lord  Coke  says,  "There  be  three  things 
highly  favored  in  law— life,  liberty,  and 
dower. ' ' 

At  an  early  period  in  the  development  of 
the  common  law,  dower  is  said  to  have  con- 
sisted of  personal  property,  but  later  it  be- 
came solely  an  interest  in  lands,  and  is  now 
understood  in  connection  with  that  form  of 
property  exclusively.  A  more  complete  defi- 
nition of  dower  is  that  it  is  a  life  estate  of  a 
wife  in  one  third  of  all  the  legal  estates  of 
inheritance  of  which  her  husband  is  seized 
at  any  time  during  coverture,  "of  a  sole, 
beneficial,  and  immediate  seizing,"  and 
which  any  issue  of  theirs  might  directly  in- 
herit.    Under  the  statutes  of  the  American 

128 


DOWER  129 

States,  dower  has  become  more  or  less  differ- 
ent from  the  estate  that  was  known  by  that 
name  at  the  common  law,  and  in  some  of  the 
States  dower  is  the  old  common-law  estate 
only  in  name,  and  in  some  States  even  the 
name  has  been  done  away  with. 

The  common-law  estate  of  dower  is  recog- 
nized in  a  more  or  less  modified  form  in  the 
following  States:  Alabama,  Arkansas,  Con- 
necticut, Delaware,  Florida,  Georgia,  Illinois, 
Kentucky,  Maine,  Maryland,  Massachusetts, 
Michigan,  Missouri,  Nebraska,  New  Hamp- 
shire, New  Jersey,  New  York,  North  Caro- 
lina, Ohio,  Oregon,  Pennsylvania,  Rhode 
Island,  South  Carolina,  Tennessee,  Vermont, 
Virginia,  West  Virginia,  and  Wisconsin. 
This  estate  has  either  never  existed  or  has 
been  abolished  or  other  estates  have  been 
substituted  for  it  in  the  following  States: 
Arizona,  California,  Colorado,  the  Dakotas, 
Idaho,  Indiana,  Iowa,  Kansas,  Louisiana, 
Minnesota,  Mississippi,  Nevada,  Utah,  Wash- 
ington, and  Wyoming.  In  the  States  of  Ken- 
tucky, Missouri,  Virginia,  and  West  Virginia 
a  wife  has  dower  in  real  estate  although  there 
may  have  been  no  actual  possession  or  re- 
covery of  possession  by  the  husband  in  his 
lifetime,  and  also  in  the  State  of  Missouri, 
although  the  property  is  held  by  the  husband 
as  a  joint  tenant,  common  tenant,  or  copar- 
cener.   In  the  State  of  Ohio  a  wife  is  also 

9 


130  WOMAN  AND  THE  LAW 

endowed  of  all  real  estate  of  which  her  hus- 
band at  his  decease  held  the  fee  in  remainder 
or  reversion,  but  not  until  after  the  particu- 
lar estate  has  determined.  In  some  of  the 
States  there  is  a  general  provision  that  a 
widow  is  entitled  to  dower  in  equitable  es- 
tates, as  in  Indiana,  Illinois,  Maryland,  Vir- 
ginia, West  Virginia,  North  Carolina,  Ten- 
nessee, and  Alabama. 

At  the  common  law,  and  where  there  is 
no  special  enactment  to  the  contrary,  a  widow 
is  entitled  to  dower  in  the  whole  of  land  mort- 
gaged or  encumbered  by  the  husband  after 
marriage  by  a  conveyance  in  which  the  wife 
has  not  joined  and  when  she  has  not  been 
otherwise  barred.  There  is  special  provision 
in  a  number  of  States  that  if  lands  were  pur- 
chased by  the  husband  during  marriage,  and 
at  the  same  time  mortgaged  to  secure  the 
purchase  money,  the  widow  has  dower  only 
in  the  equity  even  if  she  did  not  join  in  the 
mortgage,  as  in  the  States  of  New  York, 
Indiana,  Illinois,  Michigan,  Wisconsin,  Ne- 
braska, West  Virginia,  Oregon,  and  Georgia. 
In  the  case  of  lands  mortgaged  before  mar- 
riage, it  is  evident  that  the  widow  has  dower, 
if  at  all,  only  in  the  equity"  of  redemption, 
and  the  mortgagee  has  a  good  title.  In  some 
States  there  is  a  special  provision  to  this 
effect,  and  the  widow  has  dower  as  against 
every  person  but  the  mortgagee,  as  in  the 


DOWER  131 

States  of  Massachusetts,  Maine,  Vermont, 
New  York,  Illinois,  Michigan,  Wisconsin, 
Nebraska,  Virginia,  West  Virginia,  Arkan- 
sas, and  Oregon.  In  the  States  of  New  York, 
Illinois,  and  Arkansas  it  is  provided  that  a 
widow  is  not  endowed  of  lands  mortgaged  to 
her  husband  unless  he  acquires  an  absolute 
estate  therein  during  marriage.  As  to  lands 
mortgaged  by  the  husband  before  marriage 
or  after  marriage  to  secure  the  purchase 
money,  the  widow,  if  the  lands  are  sold  by 
the  mortgagee,  has  dower  in  the  proceeds  re- 
maining after  satisfying  the  mortgage  in  the 
States  of  Massachusetts,  Maine,  Vermont, 
New  York,  Illinois,  Michigan,  Wisconsin, 
Nebraska,  Virginia,  West  Virginia,  Ken- 
tucky, Arkansas,  and  Oregon.  It  is  provided 
in  the  States  of  Massachusetts,  Maine,  Ver- 
mont, Michigan,  Wisconsin,  Nebraska,  and 
Oregon  that  if  the  heir  or  other  person  claim- 
ing under  the  husband  pay  or  satisfy  the 
mortgage,  this  amount  so  paid  shall  be  de- 
ducted from  the  value  of  the  land,  and  the 
widow  shall  have  set  apart  for  her  as  dower 
the  value  of  one  third  of  the  residue.  In 
New  Jersey  it  is  specially  provided  that  there 
shall  be  no  dower  for  the  widow  of  a  trustee 
in  the  trust  estate. 

In  several  of  the  States,  if  a  husband  ex- 
changes one  estate  for  another  during  mar- 
riage the  widow  cannot  have  dower  in  both 


132  WOMAN  AND   THE  LAW 

estates,  and  shall  be  deemed  to  take  dower 
in  the  lands  so  received  in  exchange  if  she 
does  not  commence  proceedings  to  recover 
dower  in  the  lands  given  within  one  year  of 
the  death  of  her  husband,  and  so  it  is  in  the 
States  of  New  York,  Illinois,  Michigan,  Wis- 
consin, Nebraska,  Arkansas,  and  Oregon.  In 
the  New  England  States  a  widow  is  not  gen- 
erally entitled  to  dower  in  wild  land,  nor  in 
wild  land  conveyed  by  the  husband  and  after- 
ward cleared,  except  wood  lots  or  other  land 
used  with  a  farm  or  dwelling-house. 

The  rights  of  a  doweress  are,  as  a  rule, 
well  defined  in  the  statutes.  Generally,  if  a 
doweress  commits  waste  herself  or  suffers 
waste  to  be  committed  by  another  she  is  liable 
to  the  owner  of  the  next  estate  of  inheritance 
for  damages.  And  it  would  seem  to  follow 
from  the  mere  prohibition  of  permissive 
waste  that  the  doweress,  in  all  the  States, 
must  keep  the  estate  in  sufficient  repair,  and 
in  the  States  of  New  Hampshire,  Vermont, 
Rhode  Island,  Connecticut,  Illinois,  Michi- 
gan, Wisconsin,  Nebraska,  and  Oregon  it  is 
so  expressed  s])ecifically. 

In  the  United  States  three  ways  by  which 
dower  may  be  barred  are  very  generally  rec- 
ognized: first,  by  a  jointure  or  settlement; 
second,  by  a  devise  or  bequest;  and  third, 
by  a  deed.  An  estate  of  dower  may  also  be 
forfeited  bv  adultery  and  divorce.    In  most 


DOWER  133 

of  the  States  at  the  present  time  dower  may 
be  barred  by  a  conveyance,  gift,  or  devise  of 
real  property  made  by  any  person  to,  or  in 
trust  for,  an  intended  wife,  before  marriage, 
by  way  of  jointure  or  with  the  intention  of 
barring  dower.  This  may  be  done  in  the 
States  of  Maine,  New  Hampshire,  Massachu- 
setts, Vermont,  Rhode  Island,  Connecticut, 
New  York,  New  Jersey,  Ohio,  Indiana,  Illi- 
nois, Michigan,  Wisconsin,  Nebraska,  Dela- 
ware, Virginia,  West  Virginia,  Kentucky, 
Missouri,  Arkansas,  Oregon,  South  Carolina, 
and  Georgia.  In  the  State  of  Maryland  a 
widow  is  barred  from  dower  only  by  an  es- 
tate so  settled  before  her  marriage  by  her 
husband. 

There  are  certain  conditions  upon  which 
such  a  substitute  for  dower  can  be  made. 
The  conveyance  must  in  several  States  be 
made  with  the  assent  of  the  intended  wife, 
and  so  it  is  in  the  States  of  Massachusetts, 
Maine,  New  York,  Indiana,  Illinois,  Michi- 
gan, Wisconsin,  Nebraska,  Delaware,  Vir- 
ginia, West  Virginia,  Kentucky,  Missouri, 
Nebraska,  Oregon,  and  Georgia.  In  Ver- 
mont there  is  an  express  provision  that  such 
a  conveyance  will  bar  a  claim  to  dower 
whether  the  intended  wife  has  consented  to 
it  or  not.  In  some  of  the  States  her  assent 
must  be  evidenced  by  her  becoming  a  party 
to  such  a  conveyance,  as  in  Maine,  Massa- 


134  WOMAN  AND   THE   LAW 

chusetts,  New  York,  Illinois,  Michigan,  Wis- 
consin, Nebraska,  Arkansas,  and  Oregon.  If 
the  intended  wife  be  under  age,  her  father 
or  other  guardian  may  give  such  assent  for 
her  in  New  York  and  Indiana;  or  she  must 
join  with  her  father  or  guardian  in  the  con- 
veyance in  the  States  of  Maine,  Massachu- 
setts, Illinois,  Michigan,  Wisconsin,  Ne- 
braska, Arkansas,  and  Oregon.  In  a  number 
of  States  if  such  a  conveyance  is  made  with- 
out her  consent  she  may  make  a  choice  of  the 
estate  so  conveyed  or  of  dower,  but  she  is  not 
entitled  to  both,  and  this  is  the  rule  in  the 
States  of  Maine,  Massachusetts,  Vermont, 
New  York,  Indiana,  Illinois,  Michigan,  Wis- 
consin, Nebraska,  Virginia,  W^est  Virginia, 
Kentucky,  Arkansas,  and  Oregon.  The  wo- 
man 's  interest  in  such  a  conveyance,  in  order 
to  bar  dower,  must  take  effect  immediately 
upon  the  death  of  her  husband  in  the  States 
of  Massachusetts,  Maine,  Vermont,  Rhode 
Island,  Connecticut,  New  Jersey,  Ohio,  In- 
diana, Michigan,  Wisconsin,  Nebraska,  Dela- 
ware, Missouri,  and  Oregon. 

In  very  many  of  the  States  a  widow's 
dower  may  be  barred  in  the  same  way  by  a 
pecuniary  provision  settled  on  or  made  to  the 
intended  wife  before  marriage  in  lieu  of 
dower,  and  the  widow  must  exercise  an  elec- 
tion. But  a  widow  is  entitled  to  dower  in 
addition  to  the  devises  or  pecuniary  provi- 


DOWER  135 

sions  in  a  will  if  such  plainly  appear  to  have 
been  the  intention  of  the  testator  in  Maine, 
Massachusetts,  Vermont,  Connecticut,  In- 
diana, Michigan,  Wisconsin,  Nebraska,  Vir- 
ginia, Kentucky,  Missouri,  Arkansas,  and 
Oregon,  Generally,  the  intestate  share  of  a 
widow  in  personalty  is  barred  if  she  does  not 
waive  the  will,  just  as  dower  would  be. 
The  State  of  Maryland  is  an  exception  in 
this  respect,  for  a  devise  of  lands  to  the 
widow  is  construed  to  be  in  addition  to  any 
jointure  or  settlement  made  before  marriage 
by  the  husband,  and  she  is  entitled  to  re- 
ceive both. 

A  woman  may  generally  bar  her  right  to 
claim  dower  by  a  deed  that  she  may  execute, 
either  jointly  with  her  husband,  as  in  the 
States  of  Maine,  Massachusetts,  Indiana,  Illi- 
nois, Michigan,  Kansas,  Nebraska,  North 
Carolina,  Missouri,  x\rkansas,  Oregon,  Geor- 
gia, Alabama,  and  Florida;  or  separately  in 
Maine,  Massachusetts,  New  Jersey,  Michi- 
gan, Nebraska,  Oregon,  Alabama,  and  Flor- 
ida; or  jointly  after  the  conveyance  by  the 
husband  in  Maine,  Massachusetts,  and  Ne- 
braska; or  by  a  deed  executed  like  ordinary 
deeds  of  a  wife's  separate  real  estate  in 
Rhode  Island  and  New  Jersey. 

In  many  of  the  States  a  wife  who  willingly 
leaves  her  husband  and  dwells  with  another 
man  in  adultery  forfeits  her  right  to  dower. 


136  WOMAN  AND   THE  LAW 

and  this  is  the  rule  in  New  Jersey,  Ohio,  In- 
diana, Illinois,  Delaware,  Virginia,  West  Vir- 
ginia, North  Carolina,  Kentucky,  Missouri, 
and  South  Carolina.  In  Georgia  this  pro- 
vision is  expressed,  that  dower  is  barred  by 
adultery  of  the  wife  that  is  unpardoned  by 
the  husband.  In  Connecticut  a  wife  forfeits 
her  right  to  dower  who  has  abandoned  her 
husband  without  his  consent  and  not  by  his 
fault.  In  other  States  the  woman  is  not  en- 
titled to  dower  in  any  case  of  absolute  di- 
vorce, and  this  is  the  rule  in  Massachusetts, 
Connecticut,  North  Carolina,  Kentuck^^,  and 
Missouri,  except  when  the  divorce  was  for 
cause  of  adultery  by  the  husband,  or  for 
cause  of  sentence  of  the  husband  to  prison, 
or  when,  after  a  decree  nisi  of  divorce  on 
the  wife's  libel,  the  husband  dies  before  the 
decree  is  made  absolute,  in  Massachusetts, 
or  when  the  wife  has  been  divorced  without 
alimony,  she  being  the  innocent  party,  in 
Connecticut.  Generally,  a  wife  will  forfeit 
her  jointure,  settlement,  intestate  share,  or 
the  provisions  of  her  husband 's  will  made  in 
lieu  of  dower,  by  the  same  acts  or  in  all  cases 
whore  she  would  lose  dower.  And,  as  a  rule, 
if  a  widow  is  lawfully  evicted  (without  fraud 
on  her  part)  from  the  jointure  or  the  estate 
settled  or  devised  in  lieu  of  dower,  she  may 
still  claim  dower.  Generally,  also,  a  wife 
can  lose  her  estate  of  dower  by  no  act  of  her 


DOWER  137 

husband.  This  would  seem  to  result  from 
the  common  law  as  adopted  in  the  United 
States,  although  in  many  States  there  is  stat- 
ute law  to  this  effect. 

Dower  is  in  many  States  to  be  assigned 
either  by  the  heir,  remainder-man,  rever- 
sioner, or  devisee  entitled  to  the  land  subject 
to  dower.  The  heir  or  other  person  must 
assign  it  within  forty  days  after  the  death 
of  the  husband  in  New  Jersey;  as  soon  as 
possible  in  Illinois,  Arkansas,  and  Florida; 
within  thirty  days  after  the  widow's  demand 
in  New  Hampshire,  Massachusetts,  Maine, 
and  Rhode  Island;  or  she  may  apply  at 
any  time  not  before  twenty  days  from  the 
husband's  death  in  Iowa  and  Kansas;  or 
within  one  year  after  such  death,  or  three 
months  after  demand,  in  Arkansas ;  or  within 
two  years  after  the  husband's  death  in  Mis- 
souri; or  within  two  months  in  Florida;  or 
after  the  expiration  of  three  months  from 
the  husband's  death  in  Georgia. 

The  widow  must  sue  for  or  claim  dower 
within  five  years  after  the  husband's  death 
in  Kansas,  within  ten  3^ears  in  Iowa,  within 
twenty  years  in  Massachusetts  and  New 
York,  within  seven  years  in  Georgia,  within 
three  years,  when  the  rights  of  alienees  of  the 
husband  are  involved,  in  Alabama.  In  many 
of  the  States  dower  may  also  be  assigned  by 
the  probate  court  in  which  the  husband's  es- 


138  WOMAN  AND   THE  LAW 

tate  is  being  settled,  aud  this  is  the  rule 
in  Maine,  Massachusetts,  Vermont,  Rhode 
Island,  Connecticut,  New  Jersey,  Pennsyl- 
vania, Michigan,  AVisconsin,  Nebraska,  Mary- 
land, Delaware,  Virginia,  Kentucky,  Ten- 
nessee, Arkansas,  Oregon,  South  Carolina, 
Alabama,  and  Florida.  In  cases  of  the  as- 
signment of  dower  by  a  court,  the  actual  divi- 
sion or  computation  is  made  by  either  three 
or  five  disinterested  commissioners  appointed 
by  the  court,  subject,  as  a  rule,  to  the  court's 
approval  and  confirmation.  Usually,  dower 
is  assigned  by  metes  and  bounds,  but  when 
this  cannot  be  fairly  or  conveniently  done 
without  injury,  the  widow  may  have  dower 
assigned  in  a  special  manner,  as  in  many 
States  in  one  third  of  the  rents  and  profits. 
In  many  States  the  usual  place  of  residence, 
with  out-buildings,  is  or  may  be,  if  the  widow 
desire,  included  in  the  land  assigned  as 
dower. 

When  a  widow  is  entitled  to  dower  in  the 
lands  of  her  husband  she  may  continue  to 
occupy  the  same  with  the  children  and  the 
other  heirs,  so  long  as  they  do  not  object, 
without  having  dower  assigned,  and  so  in 
]\[assachusetts,  Vermont,  Michigan,  Wiscon- 
sin, Nebraska,  and  Oregon;  or  she  may  re- 
ceive one  third  of  the  rents,  issues,  and  prof- 
its of  the  same  in  "Massachusetts,  Michigan, 
Wisconsin,    Virginia,    West    Virginia,    and 


DOWER  139 

Oregon ;  or  she  may  remain  in  the  mansion- 
house  free  of  rent  until  dower  is  assigned  in 
Rhode  Island,  New  Jersey,  Ohio,  Virginia, 
West  Virginia,  Kentucky,  Missouri,  Arkan- 
sas, Georgia,  Alabama,  and  Florida.  When- 
ever in  any  action  for  the  purpose  a  widow 
recovers  her  dower  in  land  of  which  her  hus- 
band died  seized  she  is  entitled  also  to  re- 
cover damages  for  the  withholding  of  such 
dower  in  Maine,  New  Hampshire,  Massachu- 
setts, Rhode  Island,  New  York,  New  Jersey, 
Illinois,  Michigan,  Wisconsin,  Nebraska, 
Delaware,  Virginia,  W^est  Virginia,  Missouri, 
and  Oregon.  Such  damages  are  one-third 
part  of  the  rents  and  profits  of  the  land  in 
which  the  widow  recovers  dower  in  the  States 
of  New  York,  New  Jersey,  Michigan,  Wis- 
consin, and  Nebraska.  In  others  of  the  States 
a  widow  is  entitled  to  receive  one  undivided 
net  third  part  of  the  rents  and  profits  of  the 
estate  of  which  her  husband  died  seized  until 
her  dower  is  assigned,  and  this  is  the  law  in 
the  States  of  Maine,  New  Hampshire,  Massa- 
chusetts, Vermont,  Ohio,  Kentucky,  Missouri, 
Arkansas,  and  Oregon. 

By  the  law  of  the  State  of  New  York,  when 
a  widow  shall  recover  her  dower  in  any  lands 
alienated  by  the  heir  of  her  husband  she 
shall  be  entitled  to  the  recovery  of  damages 
for  the  withholding  of  such  dower  from  the 
time  of  the  death  of  her  husband  to  the  time 


140  WOMAN  AND   THE   LAW 

of  the  alienation  by  the  heir,  not  exceeding 
six  years  in  all,  and  the  amount  which  she 
shall  be  entitled  to  recover  from  such  heir 
shall  be  deducted  from  the  amount  she  would 
otherwise  be  entitled  to  recover  from  such 
grantee,  and  any  amount  recovered  as  dam- 
ages from  such  grantee  shall  be  deducted 
from  the  amount  she  would  otherwise  be  en- 
titled to  recover  of  such  heir.  Such  is  the 
law  in  the  States  of  Michigan,  Wisconsin, 
Nebraska,  and  Oregon  also.  Dower  in  land 
that  has  been  aliened  by  the  husband  is  to 
be  determined  as  against  the  purchaser  ac- 
cording to  the  value  of  the  land  at  the  time 
of  the  alienation  in  the  States  of  Michigan, 
Wisconsin,  Nebraska,  Kentucky,  Oregon, 
South  Carolina,  or  at  the  time  that  the  widow 
recovers  dower  in  Missouri. 

In  a  number  of  States  if,  during  the  minor- 
it>^  of  an  heir,  dower  is  assigned  to  a  widow 
who  is  not  entitled  thereto,  or  if  a  widow  re- 
covers dower  by  the  default,  fraud,  or  collu- 
sion of  the  guardian,  such  heir  has  an  action 
against  the  widow  to  recover  such  lands  on 
coming  of  age,  and  this  is  the  law  in  New 
York,  New  Jersey,  Ohio,  Michigan,  AViscon- 
sin,  Nebraska,  Virginia,  West  Virginia,  Mis- 
souri, and  Oregon.  In  New  Jersey  and  Ken- 
tucky it  is  declared  that  an  heir  is  not  ])ound 
by  any  collusive  or  ex-parte  assignment  of 
dower  excei)t  so  far  as  the  widow  shows  her- 


DOWER  141 

self  to  be  justly  entitled  thereto.  So  also  in 
New  Jersey,  Virginia,  West  Virginia,  and 
Kentucky  the  widow  shall  not  be  barred  by 
reason  of  any  judgment  rendered  by  default 
or  collusion  against  the  husband  if  she  would 
be  entitled  to  dower  had  there  been  no  such 
judgment. 

As  a  general  rule,  an  assignment  of  dower 
once  made  and  accepted  by  the  widow  is  a 
bar  to  her  further  claim  of  dower,  and  it  is 
so  declared  in  the  States  of  New  York,  Miclii- 
gan,  Wisconsin,  Kansas,  Nebraska,  Arkan- 
sas, and  Oregon. 


A   MARRIED    WOMAN'S   SEPARATE 
ESTATE 

IT  is  a  general  rule  throughout  the  United 
States  at  the  present  time  that  a  married 
woman  may  receive,  receipt  for,  hold,  man- 
age, dispose  of,  lease,  sell  and  convey,  devise, 
or  bequeath  her  separate  property,  both  real 
and  personal,  as  if  sole,  without  joining  with 
or  receiving  the  consent  of  her  husband.  She 
may  generally  make  contracts  and  incur  lia- 
bilities as  if  sole  in  the  greater  number  of 
States.  There  are,  however,  certain  limita- 
tions defined  in  the  statute  law.  So,  in  the 
State  of  Georgia  any  restriction  upon  such 
powers  of  the  wife  made  in  a  marriage  con- 
tract must  be  complied  with,  and  no  contract 
of  sale  by  a  wife  as  to  her  separate  estate 
with  her  husband  or  trustee  is  valid  without 
an  order  of  court.  In  the  State  of  Maine  a 
married  woman  cannot,  without  the  joinder 
of  the  husband,  convey  real  estate  that  has 
been  directly  or  indirectly  conveyed  to  her 
by  him,  or  paid  for  by  him,  or  given  or  de- 
vised to  her  by  his  relatives,  except  such 
property  was  conveyed  to  her  as  security  or 

142 


A  MARRIED  WOMAN'S  ESTATE     143 

in  payment  of  a  bona-fide  debt  actually  due 
to  her  from  him. 

By  the  Louisiana  law  a  wife,  even  when 
she  is  separate  in  estate,  cannot  alienate, 
grant,  or  mortgage  her  property  unless  her 
husband  concurs  in  the  act  or  yields  his  con- 
sent in  writing.  If  a  husband  refuses  to  em- 
power his  wife  to  contract  she  may  cause  him 
to  be  cited  to  appear  before  the  proper  judge, 
who  may  authorize  her  to  make  the  contract 
or  refuse  to  empower  her  after  the  husband 
has  been  heard  or  has  made  default.  In  car- 
rying out  the  power  to  borrow  money  or  to 
contract  debts,  a  wife,  in  order  to  bind  herself 
or  her  separate  property,  must  be  examined 
at  chambers  by  the  judge  of  the  district  or 
parish  in  which  she  resides,  apart  from  her 
husband,  concerning  the  objects  for  which 
the  money  is  to  be  borrowed  or  the  debt  con- 
tracted, and  if  the  judge  discovers  that  either 
the  one  or  the  other  is  for  her  husband's 
debts,  or  for  his  separate  benefit,  the  judge 
shall  not  give  his  sanction.  If  satisfied,  the 
judge  shall  furnish  the  woman  with  a  certifi- 
cate which,  presented  to  a  notary,  shall  be  his 
authority  for  drawing  an  act  of  mortgage. 
In  the  States  of  Oregon  and  Washington  all 
laws  which  impose  or  recognize  civil  disa- 
bilities upon  a  wife  which  are  not  imposed 
or  recognized  as  existing  on  the  husband,  ex- 
cept as  to  voting  and  holding  public  oflBce, 


144  WOMAN  AND   THE  LAW 

have  been  repealed.  The  State  of  Missis- 
sippi has  enacted  "'that  the  common  law  as 
to  the  disabilities  of  married  women,  and  its 
effect  on  the  rights  and  property  of  the  wife, 
is  totally  abrogated,  and  marriage  shall  not 
be  held  to  impose  any  disability  or  incapacity 
on  a  woman,  as  to  the  ownership,  acquisition 
or  disposition  of  property  of  any  sort,  or  as 
to  her  ca]:)acity  to  make  contracts  and  do  all 
acts  which  she  could  do,  in  reference  to  prop- 
erty, if  unmarried. "  It  is  a  general  rule  that 
a  receipt  by  a  husband  of  the  rents  and  prof- 
its of  the  wife's  separate  property  is  a  suffi- 
cient discharge,  unless  previous  notice  in 
writing  is  given  by  the  wife.  The  States  of 
Delaware,  West  Virginia,  Kentucky^  Arkan- 
sas, Alabama,  and  Florida  have  enacted  that 
when  a  deposit  of  earnings  in  a  savings-bank 
is  made  by  a  woman  then  or  thereafter  mar- 
ried, the  bank  may  pay  it  out  on  receiving 
her  i^ersonal  receipt. 

A  married  woman  may,  in  most  States, 
prosecute  and  defend  suits  concerning  her 
own  property  as  if  sole.  In  the  States  of 
Maine,  Delaware,  and  Texas  she  may  sue 
jointly  with  her  husband.  But  in  the  States 
of  lihode  Island,  Pennsylvania,  Indiana,  and 
Virginia  a  married  woman  must  sue  or  be 
sued  jointly  with  her  husband.  In  Texas  a 
wife,  if  her  husband  fails  to  sue,  may  have 
an  order  of  court  to  sue  in  her  own  name. 


A  MARRIED  WOMAN'S  ESTATE     145 

In  Maine  and  Delaware  a  husband  acting- 
alone  cannot  maintain  an  action  concerning 
the  property  of  his  wife. 

In  the  States  of  Massachusetts,  New  Jer- 
sey, and  Louisiana  suits  between  husband 
and  wife  are  not  allowed,  except,  of  course, 
for  divorce,  separation,  etc.,  and  in  Louisiana 
for  property  with  the  permission  of  the  court. 

In  the  States  of  Indiana,  Wisconsin,  West 
Virginia,  North  (/arolina,  Kentucky,  Mis- 
souri, Arkansas,  California,  Oregon,  Nevada, 
Colorado,  Washington,  Idaho,  the  Dakotas, 
Montana,  AVyoming,  Utah,  South  Carolina, 
Georgia,  Mississippi,  and  the  Territory  of 
Arizona  a  wife  may  prosecute  an  action 
against  her  husband,  or  defend  one  brought 
by  him.  In  North  Carolina,  in  all  actions 
against  a  married  woman,  the  husband  must 
be  served  with  the  suit,  and  may  with  her 
consent  be  allowed  to  defend  in  her  name.  It 
is  provided  in  Illinois,  Iowa,  Oregon,  Wash- 
ington, and  Louisiana  that  if  either  a  hus- 
band or  a  wife  unlawfully  obtains  or  retains 
possession  or  control  of  property  belonging 
to  the  other,  either  before  or  after  marriage, 
the  owner  may  sue  therefor  as  if  they  were 
unmarried.  In  Louisiana  the  husbands  have 
in  their  control  all  of  the  personal  and  pos- 
sessory actions  to  which  wives  are  entitled, 
and  may  sue  in  their  own  names.  But  ac- 
tions that  relate  to  the  dotal  or  paraphernal 

10 


146  WOMAN  AND   THE   LAW 

property"  must  be  brought  by  the  wife,  duly 
authorized  by  the  husband  or  by  the  judge  if 
the  husband  fails  to  do  so.  A  suit  against  a 
married  woman  for  a  cause  relative  to  her 
separate  interest  must  be  brought  both 
against  her  and  the  husband.  In  the  States 
of  Maine,  Wisconsin,  Illinois,  Iowa,  Oregon, 
and  Washington  it  is  specifically  provided 
that  a  married  woman  may  sue  for  her  earn- 
ings in  her  own  name.  A  married  woman 
maj''  sue  in  her  own  name  for  an  injury  to 
her  iDerson  and  character  as  if  sole  in  Maine, 
Indiana,  AVisconsin,  Delaware,  Arkansas, 
Oregon,  Colorado,  and  Wyoming. 

In  a  number  of  States,  if  the  husband  and 
wife  are  sued  together  the  wife  may  defend 
for  her  own  right,  and  so  it  is  declared  in 
the  States  of  Ohio,  Illinois,  Iowa,  Kansas, 
Nebraska,  Kentucky,  Arkansas,  California, 
Nevada,  Colorado,  Washington,  Idaho,  Mon- 
tana, Wyoming,  Utah,  and  in  the  Territory 
of  Arizona. 

A  married  woman  owning  stock  in  an  in- 
corporated company  may  vote  at  an  election 
of  officers  by  proxy  or  otherwise,  except  in 
the  case  of  mutual  fire-insurance  companies, 
by  the  laws  of  New  York  and  West  Virginia. 
In  Pennsylvania  a  married  woman  may  sell 
and  transfer  shares  of  railroad  stock  as  if 
sole,  and  so  of  stock  in  any  com]iany  in  Ala- 
bama.   By  the  civil  codes  of  California  and 


A  MARRIED   WOMAN'S  ESTATE     147 

the  Dakotas  shares  of  stock  in  corporations 
held  or  owned  by  a  married  woman  may  be 
transferred  by  her,  her  agent  or  attorney, 
without  the  signature  of  her  husband,  in  the 
same  manner  as  if  such  married  woman  were 
a  feme  sole;  and  any  proxy  or  power  given 
by  a  married  woman  touching  any  shares  of 
stock  of  any  corporation  is  valid  and  binding 
without  the  signature  of  her  husband,  the 
same  as  if  she  were  unmarried.  So  also  all 
dividends  payable  upon  any  shares  of  stock 
of  a  corporation  held  by  a  married  woman 
may  be  paid  to  her,  her  agent  or  attorney,  as 
if  she  were  unmarried,  and  it  is  unnecessary 
for  her  husband  to  join  in  a  receipt  therefor. 

The  statutes  of  Colorado  provide  that  a 
married  woman  may  become  a  special  part- 
ner either  with  her  husband  or  with  any 
other  person ;  she  may  also  contract  with  him 
or  any  other  person  as  if  sole,  and  in  all  suits 
arising  from  such  a  partnership  she  may  be 
a  witness  against  her  husband. 

An  attorney  who  has  acted  on  behalf  of  a 
married  woman  may  look  for  his  fee  either 
to  her  husband  or  to  her  trustee,  or  to  her 
property  or  to  herself.  As  a  wife  at  common 
law  always  sues  and  is  sued  jointly  with  her 
husband,  and  since  he  employs  counsel  for 
them  both,  the  pa:^Tnent  of  the  fees  naturally 
falls  upon  him.  But  when  he,  by  his  con- 
duct, makes  it  necessary  for  her  to  take  pro- 


148  WOMAN  AND   THE  LAW 

ceedings  against  him,  the  question  arises 
whether  he  is  not  liable  for  the  expenses  of 
the  suit  as  for  necessaries.  It  has  been  held 
that  when  a  wife  sues  out  a  peace  warrant 
against  her  husband,  or  defends  herself 
against  a  similar  proceeding  by  him,  or  when 
she  sues  for  a  separate  maintenance,  her 
legal  expenses  are  necessaries  for  which  her 
husband  is  liable.  The  expenses  of  a  wife 
in  bringing  or  defending  a  divorce  suit  have 
been  held  to  be  necessaries  in  the  States  of 
Georgia,  Iowa,  Kansas,  and  Maryland,  while 
the  contrary  is  the  rule  in  the  States  of  Ala- 
bama, Connecticut,  Illinois,  Indiana,  Ken- 
tucky, Massachusetts,  New  Hampshire,  Ohio, 
Tennessee,  and  Vermont.  Even  where  such 
legal  expenses  may  be  considered  as  neces- 
saries they  are  not  of  necessity  so,  for  there 
must  exist  a  reasonable  ground  for  bringing 
the  suit,  or  some  real  defense  in  resisting  it. 
Besides  this,  the  courts  usually  provide  for 
counsel  fees  in  divorce  cases  under  their 
jurisdiction  to  award  alimony. 

The  trustee  of  the  separate  property  of  a 
married  woman  may  employ  an  attoi'uey,  and 
although  he  binds  himself  personally  to  com- 
pensate the  attorney,  he  has  a  right  to  repay 
himself  out  of  the  estate. 

At  the  common  law  a  married  woman 
could  not  appear  by  an  attorney  in  a  suit 
unless  he  were  appointed  to  serve  by  her 


A  MARRIED   WOMAN'S  ESTATE     149 

husband,  and  therefore  her  contract  to  pay 
counsel  fees  was  absolutely  void. 

Under  the  usual  statutes,  however,  that 
authorize  a  married  woman  to  enter  into  con- 
tracts generally,  there  seems  to  be  no  reason 
why  slie  should  not  contract  for  counsel  fees, 
and  when  by  a  statute  a  married  woman  is 
authorized  to  contract  with  respect  to  her 
property,  a  contract  for  legal  services  relating 
to  such  property  would  be  valid.  Whether 
when  she  may  employ  legal  counsel  she  binds 
herself  personally  or  binds  only  her  property 
seems  to  be  an  unsettled  question.  When  a 
wife  is  liable  for  family  expenses,  whether 
or  not  counsel  fees  are  a  family  expense  must 
depend  on  the  particular  circumstances  of 
the  case. 

In  the  States  of  New  York  and  West  Vir- 
ginia the  law  declares  that  every  woman  resi- 
dent in  the  State  who  shall  receive  a  patent 
for  her  own  inventions,  under  the  laws  of 
the  United  States,  may  hold  and  enjoy  the 
same  and  all  proceeds  therefrom  to  her  sepa- 
rate use,  and  transfer  and  dispose  of  the 
same  as  if  unmarried.  But  in  New  York 
this  provision  does  not  authorize  her  to  con- 
tract any  pecuniary  obligations  to  be  dis- 
charged at  a  future  time.  In  New  Hamp- 
shire if  a  husband  becomes  insane  the  wife 
may  hold  to  her  own  use  the  earnings  of 
their  minor  children  during  such  insanity. 


150  WOxMAN   AND   THE   LAW 

The  proceeds  of  anj^  part  of  a  wife's  sepa- 
rate property  that  has  been  sold  are  declared 
to  be  her  separate  property  in  the  States 
of  Vermont,  Connecticut,  Kansas,  Nebraska, 
Maryland,  Delaware,  Kentucky,  Tennessee, 
Missouri,  Arkansas,  and  Alabama.  The  Ken- 
tucky law  provides  that  any  corporate  stock 
in  the  name  of  a  female,  and  expressed  on 
the  face  of  the  certificate  to  be  for  her  use, 
belongs  to  her  free  from  all  claims  on  the 
part  of  the  husband,  and  passes  by  her  will 
or  by  descent  to  her  heirs,  and  she  may  re- 
ceive dividends  and  give  receipts  as  if  un- 
married, but  may  not  anticii)ate  the  same  or 
give  orders  in  advance  therefor. 

There  is  a  certain  kind  of  i)roperty  of  a 
woman  which  in  Georgia  is  called  ''para- 
phernalia," and  which  in  the  States  of  Rhode 
Island,  Colorado,  Georgia,  and  Louisiana  is 
not  subject  to  the  debts  nor  the  control  of 
the  husband.  Such  property  consists,  first, 
of  her  wearing  apparel  (in  Colorado  and 
Georgia)  ;  second,  the  wearing  a]:)parel  of  her 
children  (in  Georgia) ;  and,  third,  of  her  or- 
naments suitable  to  her  condition  in  life  (in 
Georgia)  ;  so  especially  her  watch  (in  Colo- 
rado and  Georgia) ;  her  jewelry  (in  Rhode 
Island  and  Colorado)  ;  silver  and  tableware 
(in  Colorado) ;  and  plate  (in  Rhode  Island), 
and,  generally,  all  such  articles  as  have  been 
given  to  her  for  her  own  use  and  comfort. 


A  MARRIED   WOMAN'S  ESTATE     151 

By  the  law  of  Louisiana,  all  property 
which  is  not  declared  to  be  brought  in  mar- 
riage by  the  wife  or  to  be  given  to  her  in 
consideration  of  her  marriage  or  to  belong 
to  her  at  the  time  of  the  marriage  is  regarded 
as  paraphernalia.  Such  property  the  wife 
has  a  right  to  administer  personally,  with- 
out the  assistance  of  her  husband;  but  all 
of  the  paraphernal  jDroperts^  which  is  not 
administered  by  the  wife  alone  is  considered 
to  be  under  the  management  of  the  husband. 
When  the  paraphernal  property  is  adminis- 
tered by  the  husband,  or  by  him  and  the  wife 
indifferently,  the  fruits  of  such  property, 
whether  natural  or  the  result  of  labor,  belong 
to  the  conjugal  partnership  if  there  exist  a 
community  of  gains.  If  such  a  community 
does  not  exist,  each  party  enjoys  that  which 
comes  to  his  hand.  A  wife  who  has  left  to 
her  husband  the  administration  of  her  para- 
phernal properties  may  aftei'ward  withdraw 
it  from  him.  The  husband  who  administers 
the  paraphernal  properties  of  his  wife  is  ac- 
countable to  her  for  all  the  profits.  If  all 
the  property  of  the  wife  is  paraphernal  in  its 
legal  nature,  and  she  has  reserved  to  herself 
the  administration  of  it,  she  may  be  required 
to  bear  a  part  of  the  expenses  of  the  estab- 
lishment maintained  by  herself  and  her  hus- 
band equal,  if  necessary,  to  one  half  of  her 
income.     The  wife  may  alienate  her  para- 


152  WOMAN  AND   THE  LAW 

phernal  properties,  with  the  assent  of  her 
husband,  or,  in  case  of  the  refusal  of  the  hus- 
band to  give  his  sanction,  or  of  his  absence 
from  home,  then  with  the  sanction  of  the 
judge.  In  the  event  of  its  being  proved  that 
the  husband  has  received  the  amount  of  the 
paraphernal  property  thus  alienated  by  his 
wife,  or  has  otherwise  disposed  of  the  same 
for  his  individual  interest,  the  wife  has  a 
legal  mortgage  on  all  of  the  property  of  her 
husband,  in  order  that  she  may  be  reim- 
bursed. The  wife  has,  even  during  marriage, 
a  right  of  action  against  her  husband  for  the 
restitution  of  her  paraphernal  effects  and 
their  profits. 

According  to  the  law  of  the  State  of  Loui- 
siana, based  upon  the  civil  law,  the  separate 
property  of  a  wife  is  regarded  as  being  of 
two  kinds— dotal  and  extradotal.  Dotal 
property  is  that  which  a  wife  brings  to  her 
husband  to  assist  him  in  bearing  the  expenses 
of  the  marriage  establishment.  Extradotal 
property,  which  is  otherwise  called  para- 
phernal property,  is  that  which  forms  no 
part  of  the  dowry. 

Whatever  in  the  marriage  contract  is  de- 
clared to  belong  to  the  wife,  or  to  be  given 
to  her  on  account  of  the  marriage  by  other 
persons  than  the  husband,  constitutes  the 
dowry,  unless  there  be  an  express  stipulation 
to  the  contvary.    The  settlement  of  the  dowry 


A  MARRIED  WOMAN'S  ESTATE     153 

may  include  all  the  present  and  future  effects 
of  the  wife,  or  her  present  effects  only,  or, 
again,  a  part  of  her  present  and  future  ef- 
fects, or  even  an  individual  object.  Dowiy 
cannot  be  settled  nor  can  it  be  increased  dur- 
ing the  marriage.  It  can  be  settled  either  by 
the  wife  herself  or  by  her  father  or  mother 
or  other  ascendants,  or  by  strangers.  If  the 
father  and  the  mother  jointly  settle  a  dowry, 
without  distinguishing  the  portion  that  each 
settles,  it  is  supposed  to  be  constituted  of 
equal  portions.  If,  however,  the  dowry  is 
settled  by  the  father  alone,  the  mother,  al- 
though present  at  the  making  of  the  con- 
tract, is  not  bound,  but  the  father  alone  is 
liable  for  the  whole  amount  of  the  dowry. 
If  a  surviving  father  or  mother  settle  a 
dowry  without  specifying  the  portions,  the 
dowry  shall  be  first  taken  out  of  the  rights 
of  the  future  wife  in  the  succession  of  the 
deceased  father  or  mother,  and  the  rest  out 
of  the  estate  of  the  person  who  settled  the 
dowry. 

The  interests  of  the  dowry  begin  of  right 
from  the  day  of  the  marriage  against  those 
who  have  promised  it,  although  there  may  be 
time  given  for  the  payment,  unless  there  is 
an  express  stipulation  to  the  contrarj^  A 
dowrj^  is  given  to  a  husband  to  enjoy  as  long 
as  the  marriage  shall  last.  The  income  or 
proceeds  of  the  dowry  belong  to  the  husband, 


154  WOMAN  AND   THE  LAW 

and  are  intended  to  help  him  support  the 
marriage  establishment.  The  husband  alone 
has  the  administration  of  the  dowry,  and  the 
wife  cannot  deprive  him  of  it,  and  he  may 
act  alone  in  a  court  of  law  for  the  preserva- 
tion or  recovery  of  the  dowry  against  any 
persons  who  either  owe  or  detain  the  same, 
but  this  does  not  prevent  the  wife  from  re- 
maining the  owner  of  the  effects  which  she 
brought  as  her  dowry.  In  case,  however,  of 
the  husband's  absence  or  his  neglect  to  sue 
for  the  dowry  of  his  wife,  she  may  sue  for 
it  herself,  having  first  received  permission 
from  the  proper  judge.  The  husband  can- 
not be  required  to  give  security  upon  his 
receiving  the  dowry,  unless  he  is  bound  to 
do  so  according  to  the  terms  of  the  marriage 
contract. 

A  wife  may,  with  the  consent  of  her  hus- 
band, or,  upon  his  refusal,  with  the  authori- 
zation of  the  judge,  give  her  dotal  effects 
for  the  establishment  of  the  children  she  may 
have  by  a  former  marriage,  but  if  her  only 
authority  is  her  permission  obtained  from 
the  judge  she  is  required  to  reserve  the  en- 
joyment of  the  property  to  her  husband  dur- 
ing his  lifetime.  With  her  husband's  con- 
sent, the  wife  may  make  such  a  settlement 
on  their  common  children. 

If  immovable  effects  have  been  settled  as 
dowry,  they  may  be  alienated  with  the  con- 


A  MARRIED   WOMAN'S   ESTATE     155 

sent  of  the  wife,  if  such  an  alienation  has  been 
allowed  by  the  terms  of  the  marriage  con- 
tract, but  the  value  of  such  immovables  must 
be  reinvested  in  other  forms  of  immovable 
property.  The  wife  may  also  mortgage  her 
dotal  property. 

If  a  dowry  is  in  danger  of  being  lost,  the 
wife  may  sue  for  a  separation  of  property. 
If  any  of  the  immovables  the  ownership  of 
which  is  vested  in  the  wife  have  been  de- 
stroyed or  have  grown  less  valuable  by  use, 
and  this  without  any  neglect  on  the  part  of 
the  husband,  he  is  bound  to  restore  at  the 
dissolution  of  the  marriage  only  such  as  may 
remain;  nevertheless,  the  wife  may  on  the 
dissolution  of  the  marriage  take  back  her 
linen,  clothing,  and  jewels  in  her  actual  use. 
If  the  dowry  includes  bonds  or  credits  which 
could  not  be  recovered  owing  to  the  insol- 
vency of  the  debtors  or  otherwise,  but  not 
owing  to  the  fault  or  neglect  of  the  husband, 
he  is  not  answerable  at  a  dissolution  of  the 
marriage  for  the  condition  of  the  dowry,  but 
is  bound  only  to  restore  the  instruments  or 
vouchers  upon  which  the  credits  are  founded. 
If  a  dowry  consists  of  a  usufruct,  the  hus- 
band or  his  heirs,  at  the  time  of  the  dissolu- 
tion of  the  marriage,  are  required  only  to 
return  the  right  of  usufruct,  and  not  the 
profits  which  accrued  during  the  marriage. 
Where  there  are  herds  or  flocks  as  part  of  a 


156  WOMAN  AND  THE  LAW 

dowry,  not  valued  in  the  marriage  contract 
or  valued  with  a  declaration  that  the  esti- 
mated ^'alue  does  not  deprive  the  wife  of  her 
property  in  the  same,  the  husband  is  bound 
only  to  deliver  such  proportion  of  the  in- 
crease or  young  proceeding  from  such  flocks 
and  herds  during  the  period  of  the  marriage 
as  shall  be  necessary  to  complete  the  whole 
number  of  head  of  cattle  that  he  originally 
received. 

If  the  marriage  is  dissolved  by  the  death 
of  the  wife,  the  interests  and  profits  of  the 
dowry  go  to  the  benefit  of  her  heirs  from  the 
day  of  her  death.  If,  however,  the  marriage 
is  dissolved  by  the  death  of  the  husband,  the 
wife  has  her  choice  either  to  claim  the  in- 
terests of  her  dowry  during  the  year  of 
mourning  or  to  claim  a  maintenance,  to  be 
taken  out  of  the  succession  of  her  husband. 
But  in  both  cases  the  wife  has  the  right  dur- 
ing the  year  of  mourning  to  be  supplied  with 
a  home  and  with  mourning  clothes  out  of 
the  succession,  which  charges  must  not  be 
deducted  out  of  the  interests  due  to  her. 

A  wife  has  a  legal  mortgage  on  the  un- 
movable  property,  and  a  privilege  on  the 
movable  propert}^  of  her  husband,  first,  for 
the  restitution  of  her  dowry,  as  well  as  for 
the  replacing  of  her  dotal  effects  which  she 
brought  at  the  time  of  her  marriage,  and 
which  were  alienated  by  her  husband;  sec- 


A  MARRIED   WOMAN'S  ESTATE     157 

ond,  for  the  restitution  or  the  replacing  of  the 
dotal  effects  which  she  acquired  during  the 
marriage,  either  by  succession  or  by  do- 
nation. 

During  the  marriage  the  husband  may, 
with  the  consent  of  the  wife,  if  she  be  of 
age,  be  authorized  by  the  judge,  with  the  ad- 
vice of  five  of  the  nearest  relatives  of  the 
wife,  or  friends,  for  want  of  relations,  to 
mortgage,  specially  for  the  preservation  of 
his  wife's  rights,  the  immovable  property 
which  he  shall  designate,  and  in  that  event 
the  surplus  of  his  property  is  free  from  any 
legal  mortgage  in  favor  of  his  wife.  If  the 
wife  be  a  minor,  the  judge  may  still  grant 
this  permission,  provided  that  it  has  the  as- 
sent of  a  family  meeting  and  of  a  curator 
ad  hoc  appointed  to  the  wife. 

If  a  wife  has  not  brought  any  dowry,  or 
when  what  she  has  brought  as  a  dowry  is 
very  inconsiderable  in  respect  to  the  condi- 
tion of  the  husband,  if  either  the  husband 
or  the  wife  die  rich,  leaving  the  survivor  in 
need,  the  latter  has  the  right  to  take  out  of 
the  succession  of  the  deceased  what  is  called 
the  marital  portion— ihsii  is,  a  fourth  of  the 
succession  in  full  property— if  there  be  no 
children,  and  the  same  proportion  in  usu- 
fruct only  when  there  are  but  three  or  a 
smaller  number  of  children;  and  if  there 
be  more  than  three  children,  the  survivor, 


158  WOMAN  AND   THE  LAW 

whether  husband  or  wife,  shall  receive  only 
a  child's  share  in  usufruct,  and  he  is  re- 
quired to  include  in  this  portion  what  has 
been  left  to  him  as  a  legacy  by  the  husband 
or  wife  who  died  first. 


THE   PROPERTY   RIGHTS   OF 
MARRIED  WOMEN 


ALABAMA 

IN  the  State  of  Alabama  the  right  of  a 
married  woman  in  the  estate  of  her  hus- 
band is  that  of  dower  only.  If  there  are  no 
lineal  descendants,  and  the  estate  is  solvent, 
the  dower  interest  is  one  half  of  the  real  es- 
tate during  the  life  of  the  widow,  but  if  the 
estate  is  insolvent  then  one  third  only.  If 
there  are  lineal  descendants,  then  the  dower 
right  is  one  third,  whether  the  estate  is  sol- 
vent or  not.  If  a  husband  dies  intestate  his 
widow,  if  there  are  no  children,  is  entitled 
to  all  of  his  personal  estate;  if  there  is  but 
one  child,  she  is  entitled  to  one  half ;  if  there 
are  more  than  one  child  and  not  more  than 
four  children,  then  the  widow  is  entitled  to 
one  child's  portion;  and  if  there  are  more 
than  four  children,  then  she  is  entitled  to 
one  fifth. 

If  any  woman  having  a  separate  estate  sur- 
vive the  husband,  and  such  separate  estate, 
exclusive  of  the  rents,  incomes,  and  profits,  is 
equal  to  or  greater  in  value  than  her  dower 

159 


160  WOMAN  AND   THE  LAW 

interest  and  distributive  share  in  her  hus- 
band's estate,  estimating  her  dower  interest 
in  his  lands  at  seven  years'  rent,  she  shall 
be  entitled  to  dower  in  or  a  distributive  share 
of  her  husband's  estate.  If  her  separate  es- 
tate be  less  in  value  than  her  dower,  so  much 
must  be  allowed  her  as  with  her  separate 
estate  would  be  equal  to  her  dower  and  dis- 
tributive share  in  her  husband 's  estate  if  she 
had  no  separate  estate.  If  a  wife  dies  intes- 
tate, her  husband  is  entitled  to  one  half  of 
the  personal  property  of  her  separate  estate 
absolutely,  and  to  the  use  of  the  real  prop- 
erty during  his  life,  unless  he  has  been  legally 
divested  of  all  control  over  it  by  a  decree  of 
a  court  of  chancery. 

ARIZONA 

Both  the  rights  of  dower  and  of  curtesy 
have  been  abolished  by  territorial  legislation, 
but  Congress  in  1887  passed  a  law,  operative 
in  all  of  the  Territories,  giving  dower  to  a 
widow.  If  either  the  husband  or  the  wife 
dies  intestate,  leaving  descendants  of  the  sep- 
arate property  of  either,  the  survivor  has  one 
third  of  the  personal  property  and  one  third 
for  life  of  the  real  property.  If  there  are 
no  descendants,  the  survivor  has  all  of  the 
personal  estate  and  one  half  of  the  real  estate 
for  life :  and  if  there  are  neither  descendants 


PROPERTY  OF  MARRIED  WOMEN  161 

nor  a  father  or  mother  of  the  decedent,  the 
survivor  takes  the  whole  of  the  estate.  The 
community  estate  goes  complete  to  the  sur- 
vivor if  there  are  no  descendants ;  otherwise, 
one  half  of  such  property  goes  to  the  sur- 
vivor, charged,  however,  in  either  case  with 
the  community  debts. 

The  code  of  1887  (Section  1099)  reads: 
''If  the  widow  has  a  maintenance,  derived 
from  her  own  property,  equal  to  the  portion 
set  apart  to  her  by  the  preceding  sections  of 
this  article  (two  thousand  dollars),  the  whole 
of  the  property  so  set  apart  other  than  her 
half  of  the  homestead  must  go  to  the  minor 
children. "  If  a  homestead  was  selected  from 
the  community  property  it  vests  absolutely 
in  the  survivor.  If,  however,  it  was  selected 
from  the  separate  property  of  either,  it  rests 
in  that  one  or  his  heirs.  A  homestead  can- 
not exceed  five  thousand  dollars  in  value. 

ARKANSAS 

In  this  state  both  of  the  rights  of  dower  and 
curtesy  exist,  but  curtesy  only  if  the  wife 
dies  intestate  and  there  has  been  issue  of  the 
marriage  born  alive.  If  there  are  children 
the  wife  is  entitled  to  one  third  of  the  real 
property  for  her  life  and  one  third  of  the 
personal  property  absolutely.  If  there  are 
no  children  living,  the  widow  is  invested  in 
11 


162  WOMAN  AND  THE  LAW 

fee  simple  of  one  half  of  the  real  estate  where 
it  is  a  new  acquisition  and  not  an  estate  of 
inheritance,  and  one  half  of  the  personal  es- 
tate absolutely  as  against  the  collateral  heirs ; 
but  as  against  creditors,  she  shall  be  endowed 
of  one  third  of  the  real  estate  in  fee  simple, 
if  a  new  acquisition  and  not  ancestral,  and 
one  third  of  the  personal  property  absolutely. 
Provided,  however,  if  the  real  estate  of  the 
husband  is  an  ancestral  estate,  the  widow 
shall  be  endowed  of  a  life  estate  of  one  half 
of  such  estate  as  against  collateral  heirs,  and 
one  third  as  against  creditors.  If  either  the 
husband  or  the  wife  dies  intestate  and  there 
are  no  descendants,  father,  mother,  nor  their 
descendants,  nor  any  paternal  or  maternal 
kindred  capable  of  inheriting,  the  whole  es- 
tate goes  to  the  surviving  wife  or  husband 
both  as  to  real  and  personal  property. 

CALIFOENIA 

In  this  State  neither  the  right  of  curtesy  nor 
dower  obtains.  If  the  decedent  leaves  a  sur- 
viving wife  or  husband  and  only  one  child, 
or  the  lawful  issue  of  one  child,  the  separate 
estate  goes  in  equal  shares  to  the  surviving 
wife  or  husband  and  the  child,  or  the  issue  of 
such  child.  If  tliere  is  a  surviving  wife  or 
husband  and  more  than  one  child  living,  or 
one  child  living  and  the  lawful  issue  of  one 


PROPERTY  OF  MARRIED  WOMEN  168 

or  more  deceased  children,  then  one  third  of 
the  separate  estate  goes  to  the  surviving  wife 
or  husband. 

If  there  is  a  surviving  wife  or  husband, 
but  neither  issue,  father,  mother,  brother, 
nor  sister,  the  whole  of  the  estate  goes  to 
the  surviving  wife  or  husband.  Upon  the 
death  of  the  wife  all  of  the  community  prop- 
erty, without  administration,  goes  to  the  hus- 
band, except  such  a  part  as  may  have  been 
set  aside  for  her  support  by  a  judicial  de- 
cree, which  part  is  subject  to  testamentary 
disposition  or  passes  on  to  her  heirs,  exclu- 
sive of  her  husband,  if  she  leaves  no  will. 
Upon  the  death  of  the  husband,  one  half  of 
all  the  community  property  goes  to  the  wife, 
subject  to  one  half  of  the  debts. 

COLOBADO 

In  this  State  neither  the  right  of  curtesy  nor 
of  dower  obtains.  The  surviving  husband  or 
wife,  if  there  are  children  or  the  descen- 
dants of  children  living,  receives,  subject  to 
the  payment  of  debts,  one  half  of  the  entire 
estate,  both  real  and  personal.  If  there  is  no 
child  nor  the  descendants  of  any  child  liv- 
ing, the  entii-e  estate  goes  to  the  survivor.  A 
homestead  in  value  not  exceeding  two  thou- 
sand dollars  may  be  retained  by  the  surviv- 
ing husband  or  wife  or  the  minor  children. 


164  WOMAN  AND   THE  LAW 

CONNECTICUT 

To  a  woman  married  before  the  twentieth 
day  of  April,  1877,  who  with  her  husband 
has  not  accepted  the  conditions  of  the  Con- 
necticut law  of  the  date  mentioned,  there  be- 
longs the  common-law  right  of  dower— that 
is,  a  life  interest  in  one  third  of  the  real 
property  of  which  her  husband  died  pos- 
sessed, and  one  third  absolutely  of  the  per- 
sonal estate  if  there  is  no  issue  living,  other- 
wise one  half.  The  husband,  under  the  same 
conditions,  can  claim  as  a  tenant  by  curtesy 
the  whole  of  the  wife's  personal  estate,  and 
if  she  dies  intestate  the  use  for  his  life  of  her 
real  estate. 

By  the  provisions  of  the  law  of  June  22, 
1895,  the  interest  of  the  surviving  husband 
or  wife  in  the  estate  of  the  other  is  the  same 
—namely,  if  there  is  no  will,  one  third  abso- 
lutely of  the  whole  estate,  and  if  there  are  no 
children  or  their  representatives,  all  of  the 
estate  of  the  decedent  absolutely  to  the  ex- 
tent of  two  thousand  dollars  and  one  half 
absolutely  of  the  remainder  of  such  estate. 

DELAWARE 

The  rights  both  of  dower  and  curtesy  exist 
in  this  State.  If  there  is  a  child  or  the  lawful 
issue  of  a  child  living,  the  widow  has  a  life 


PROPERTY   OF   MARRIED  WOMEN  1G5 

interest  in  one  tliird  of  tlie  real  estate  and 
one  tliird  absolutely  of  the  personal  prop- 
erty. If  there  is  no  child  nor  the  descendants 
of  any  child  living,  the  widow  has  a  life  in- 
terest in  one  half  of  the  real  estate  and  one 
half  absolutely  of  the  personal  estate.  If 
there  are  neither  descendants  nor  kin— bro- 
thers, sisters,  their  descendants,  father,  and 
mother— the  widow  has  the  entire  real  estate 
for  her  life  and  the  personal  estate  abso- 
lutely. If  a  child  of  the  marriage  was  born 
alive,  whether  living  or  dead  at  the  death  of 
the  wife,  the  husband  surviving,  as  tenant 
by  the  curtesy,  has  her  entire  real  estate  dur- 
ing his  life,  and  the  whole  of  her  personal 
estate  absolutely,  subject  to  all  legal  claims. 
If  there  has  not  been  a  child  born  alive,  the 
husband  has  a  life  interest  in  one  half  of  her 
real  estate,  but  the  whole  of  the  personal 
estate  also. 

THE   DISTRICT   OF    COLUMBIA 

In  the  District  both  dower  and  curtesy  ob- 
tain. The  dower  of  the  widow  is  one  third 
of  the  real  estate  for  her  life  and  one  third 
of  the  personal  property  absolutely  if  there 
is  a  child  or  if  there  are  any  descendants 
living.  If  there  is  no  issue  nor  the  descen- 
dants of  any,  but  father,  mother,  brother,  sis- 
ter, or  the  descendants  of  any,  the  widow  re- 


1G6  WOMAN  AND   THE   LAW      ' 

ceives  one  half  of  the  personal  estate.  If 
there  are  none  of  these,  the  widow  may  have 
all  the  personal  estate  and  all  of  the  real 
estate  if  there  is  no  kindred. 


FLORIDA 

In  this  State  dower  only  obtains.  The  law 
is  that  if  a  husband  dies  intestate  or  the  will 
makes  no  provision  for  his  widow,  or  a  pro- 
vision that  is  not  satisfactory  to  her,  she  may 
have  dower  in  one  third  of  the  real  estate 
for  her  life,  and  if  there  are  no  children,  or 
but  one  child,  the  widow  may  have  one  half 
of  the  personal  estate  absolutely  and  free 
from  liability  for  the  debts  of  the  husband. 
If  there  are  no  children  and  the  husband  dies 
intestate,  the  wife  may  take  the  whole  estate 
or  dower,  at  her  election.  If  a  wife  dies  in- 
testate and  the  lms})and  but  no  descendants 
survives  her,  the  whole  of  her  estate  goes  to 
the  husband;  but  if  there  are  children  or 
their  descendants,  the  estate,  both  real  and 
personal,  descends  in  distribution  to  them. 

GEORGIA 

In  the  State  of  Georgia  the  right  of  dower 
obtains,  but  not  that  of  curtesy.  If  a  hus- 
band dies  intestate,  leaving  a  wife  and  issue 
also,  the  wife  may  elect  to  take  dower— that 


PROPERTY  OF  MARRIED  WOMEN  167 

is,  a  life  interest  in  one  third  of  the  real 
estate— or  she  may  elect  to  take  a  child's 
share  of  the  whole  estate  absolutely,  unless 
the  shares  exceed  ti^^e  in  number,  in  which 
case  she  is  entitled  to  one  fifth  of  the  estate. 
If  there  are  no  lineal  descendants  and  the 
wife  dies  intestate,  the  husband  is  the  sole 
heir.  If  there  is  a  surviving  child  or  chil- 
dren, or  the  descendants  of  any  child,  the 
husband  and  the  children  have  equal  shares 
of  the  estate. 

IDAHO 

In  this  State  neither  the  right  of  dower  nor 
of  curtesy  obtains.  If  either  the  wife  or  the 
husband  dies  intestate,  the  surviving  hus- 
band or  wife  has  one  half  of  the  separate 
estate  of  the  other  if  there  is  but  one  child 
or  the  lawful  issue  of  one  child  living.  If 
there  be  more  than  one  child  living,  and  the 
lawful  issue  of  one  or  more  deceased  chil- 
dren, the  surviving  wife  or  husband  receives 
one  third  of  such  an  estate.  If  the  decedent 
leaves  a  surviving  wife  or  husband  but  nei- 
ther issue,  father,  mother,  brother,  nor  sister, 
the  whole  of  the  estate  goes  to  the  survivor. 
Upon  the  death  of  the  wife  the  entire  com- 
munity property  belongs  to  the  husband, 
without  an  administration,  except  any  por- 
tion that  a  judicial  decree  may  have  set  apart 
for  the  wife 's  maintenance,  and  which,  in  the 


168  WOMAN  AND   THE  LAW 

absence  of  any  will  made  by  her,  descends 
to  ber  heirs,  exclusive  of  her  husband.  Upon 
the  death  of  the  husband,  one  half  of  the  com- 
jnunity  property  goes  to  the  wife,  while  the 
other  half  is  subject  to  his  testamentary  dis- 
position, or,  in  the  absence  of  such  disposi- 
tion, goes  equally  to  his  descendants.  If, 
however,  the  husband  leaves  neither  a  will 
nor  descendants,  this  portion  of  the  commu- 
nity property  is  subject  to  distribution  in  the 
same  manner  as  his  separate  estate. 

ILLINOIS 

In  the  State  of  Illinois  the  right  of  curtesy 
was  abolished  by  the  law  of  July  1,  1874. 
A  surviving  wife  or  husband  is  endowed  of 
a  third  part  of  all  the  real  estate  of  which  the 
other  dies  possessed.  If  a  wife  or  husband 
dies  intestate,  leaving  a  surviving  child  or 
children,  or  descendants  of  such  a  child  or 
children,  the  surviving  wife  or  husband  re- 
ceives, in  addition,  one  third  of  the  personal 
estate  absolutely.  If,  however,  there  are  no 
lineal  descendants,  the  widow  or  widower  re- 
ceives absolutely  one  half  of  the  real  estate 
and  the  whole  of  the  personal  estate.  If 
tliere  are  no  descendants  and  no  kindred,  the 
whole  estate  goes  to  the  surviving  widow  or 
widower. 


PROPERTY   OF  MARRIED   WOMEN  169 

INDIANA 

The  rights  of  both  dower  and  curtesy  have 
been  abolished  in  this  State.  If  a  husband 
die,  either  testate  or  intestate,  and  leaves  a 
widow,  one  third  of  his  real  estate  descends 
to  her  in  fee  simple,  free  from  all  the  claims 
of  creditors— provided,  however,  that  where 
such  real  estate  exceeds  in  value  ten  thou- 
sand dollars  the  widow  is  entitled  to  a  one- 
fourth  part  only,  and  where  such  real  estate 
exceeds  in  value  twenty  thousand  dollars  the 
widow  is  entitled  to  a  one-fifth  part  only  as 
against  creditors.  If  a  husband  dies  intes- 
tate and  leaves  a  widow  and  one  child,  the 
real  estate  is  divided  equally  between  them 
and  the  personal  estate  is  divided  equally  if 
there  are  not  more  than  two  children.  If, 
however,  there  are  more  than  two  children, 
the  widow  is  still  entitled  to  one  third  of  the 
personal  estate. 

If  there  are  children  to  a  man  living  by  a 
former  marriage,  and  none  by  a  subsequent 
marriage,  the  wife  in  the  last  marriage  re- 
ceives only  a  life  interest  in  her  share  of  her 
husband's  estate. 

If  a  wife  die,  either  testate  or  intestate, 
leaving  a  husband,  one  third  of  her  real  prop- 
erty descends  to  him,  subject  to  its  propor- 
tion of  her  debts  contracted  before  marriage, 


170  WOMAN  AND   THE   LAW 

and  also  one  third  of  her  personal  estate. 
If  either  a  husband  or  a  wife  die  intestate, 
leaving  no  child,  but  a  father  or  a  mother,  or 
both,  then  three  fourths  of  the  entire  estate 
goes  to  the  widow  or  widower,  unless  it  does 
not  exceed  one  thousand  dollars  in  value,  in 
which  case  it  all  goes  to  the  widow  or  wid- 
ower. If  there  are  neither  children,  father,  or 
mother,  the  entire  estate  goes  in  the  same 
way.  If  a  will  has  been  made,  either  the  wife 
or  the  husband  may  elect  to  take  under  the 
will  or  under  the  statute,  the  election  to  be 
made  within  ninety  days  after  the  will  has 
been  admitted  to  probate. 

IOWA 

Both  of  the  rights  of  dower  and  curtesy  have 
been  abolished  in  this  State.  The  surviving 
wife  or  husband  is  entitled  to  a  one  third 
part  in  fee  simple  of  both  the  real  and  per- 
sonal estate  of  the  other  at  her  or  his  death. 
If  either  the  wife  or  the  husband  die  intes- 
tate, leaving  no  children,  one  half  of  the  es- 
tate goes  to  the  survivor  and  the  remainder 
to  her  or  his  parents,  one  or  both ;  or  if  such 
persons  are  both  dead,  then  to  their  descen- 
dants. If  there  are  no  such  descendants,  the 
whole  estate  goes  to  the  surviving  wife  or 
husband.  If  there  have  been  more  than  one 
wife  or  husband,  the  one-half  portion  is  di- 


PROPERTY  OF   MARRIED  WOMEN  171 

vided  equally  between  the  wife  or  husband 
living  and  the  heirs  of  those  who  are  dead. 
Both  the  personal  and  real  property  follow 
the  same  rules. 

KANSAS 

In  the  year  1868  the  rights  both  of  dower  and 
curtesy  were  abolished  in  the  State  of  Kan- 
sas. If  either  a  husband  or  a  wife  dies  intes- 
tate, one  half  of  both  the  real  and  the  per- 
sonal estate  goes  to  the  survivor ;  if  there  is  no 
issue  living,  the  whole  goes  to  the  survivor. 

A  homestead  of  one  hundred  and  sixty 
acres  of  fann  land  or  a  parcel  of  land  one 
acre  in  extent  within  town  or  city  limits  may 
be  reserved,  free  from  debts,  for  the  occu- 
pancy of  the  survivor.  If  a  widow  marries 
again  or  when  all  of  the  children  have  at- 
tained their  majority  the  homestead  may  be 
divided,  one  half  passing  to  the  widow  and 
the  remainder  to  the  children.  If  a  wife  dies 
before  her  husband,  he  has  a  right  of  occu- 
pancy^, but  such  a  right  descends  to  her  heirs. 

Neither  a  wife  nor  a  husband  can  will  more 
than  one  half  of  her  or  his  property  away 
from  the  other  without  the  other's  consent. 

KENTUCKY 

By  an  act  that  became  law  on  March  15, 1894, 
the  interest  of  a  surviving  husband  or  wife 


172  WOMAN  AND   THE  LAW 

in  the  estate  of  the  other  is  made  the  same— 
that  is,  a  one-third  life  interest  in  tlie  real 
estate,  if  such  a  right  has  not  been  barred, 
forfeited,  or  extinguished,  and  an  absolute 
right  in  one  half  of  the  personal  estate  in 
excess  of  the  amount  of  debts.  If  a  husband 
or  a  wife  dies  intestate,  and  leaves  neither 
descendants  or  kindred,  the  whole  of  the  es- 
tate goes  to  the  surviving  wife  or  husband. 
If  either  a  husband  or  a  wife  dies  intestate 
and  without  descendants  that  are  living,  any 
real  estate  that  was  a  gift  from  either  the 
descendant's  parents  returns  by  law  to  that 
parent,  if  living. 

LOUISIANA 

In  the  State  of  Louisiana  there  is  neither  of 
the  rights  of  curtesy  or  of  dower.  The  law 
provides  that  at  the  death  of  either  a  husband 
or  a  wife  the  survivor  is  entitled  to  one  half 
of  all  the  community  property  absolutely.  If 
there  are  no  descendants  or  ascendants,  the 
survivor  has  also  a  life  interest  in  the  other 
half.  If  living  issue  are  left  the  law  gives 
to  the  survivor  tenant  for  life  "so  much  of 
the  share  of  the  deceased  in  such  commu- 
nity property  as  may  be  inherited  by  such 
issue,  until  a  second  marriage  is  contracted." 
If  a  widow  or  a  widower  marries  again, 
having  children,  she  or  he  can  give  to  such 


PROPERTY   OF   MARRIED   WOMEN  173 

wife  or  husband  either  by  will  or  by  gift 
during  life  only  one  third  of  her  or  his  prop- 
erty. If  a  wife  brings  no  dowry,  or  one  that 
is  inconsiderable  in  respect  to  the  condition 
of  the  husband,  if  either  the  husband  or  the 
wife  die  rich,  leaving  the  survivor  in  need, 
the  latter  has  a  right  to  receive  out  of  the 
succession  of  the  deceased  what  is  called 
"the  marital  portion"— that  is,  one  fourth  of 
the  succession  in  full  property  if  there  are 
no  children,  and  the  same  portion  when  there 
are  three  or  a  smaller  number  of  children. 
If  there  are  more  than  three  children,  the 
husband  or  wife  receives  only  a  child's 
share,  including  any  legacy  left  by  the  de- 
cedent. 

The  separate  property  of  the  husband  or 
wife  in  the  care  of  the  husband  is  also  di- 
vided equall}^,  like  the  community  property 
on  the  dissolution  of  the  marriage  by  death. 
If  a  husband  dies  poor,  the  widow  takes  pre- 
cedence over  all  creditors  to  the  amount  of 
one  thousand  dollars.  A  wife  may  renounce 
the  partnership,  and  thus  free  herself  of  the 
community  debts,  but  if  she  takes  such  action 
she  forfeits  her  share  of  such  property,  and 
receives  instead  her  dotal  and  extradotal 
effects.  A  wife  may  petition  for  a  sepa- 
rate management  of  her  dowry  if  such  ac- 
tion is  considered  necessary  to  ensure  its 
safety. 


174  WOMAN  AND   THE   LAW 

MAINE 

By  a  law  of  March  26,  1895,  the  rights  of 
dower  and  curtesy  were  abolished  in  this 
State.  The  interest  of  the  husband  or  wife 
in  the  real  estate  of  the  other,  dying  in- 
testate, is  made  the  same;  if  there  is  issue 
of  the  marriage  living,  one  third  when  there 
is  no  such  issue,  then  one  half;  if  there  is 
neither  issue  nor  kindred,  then  the  whole  of 
the  real  estate.  The  same  provisions  of  law 
hold  regarding  the  personal  estate  of  each. 
Both  a  wife  and  a  husband  have  the  right  to 
claim  their  statutory  share  in  the  estate  of 
the  other  in  preference  to  any  provision  that 
may  have  been  made  by  a  will,  provided  that 
such  an  election  is  made  within  a  period  of 
six  months. 

MARYLAND 

In  this  State  the  rights  of  dower  and  cur- 
tesy both  obtain.  If  a  husband  dies  intestate 
his  widow  has  a  life  interest  in  one  third  of 
his  real  estate,  unless  there  are  neither  de- 
scendants nor  kindred,  in  which  case  the 
widow  comes  into  possession  of  the  entire 
estate.  If  there  are  descendants,  the  widow 
is  entitled  to  one  third  of  the  personal  estate. 
If,  however,  there  are  no  descendants  but 
father,  mother,  brother,  or  sister  of  the  dece- 
dent, or  any  descendants  of  such  brother  or 


PROPERTY  OF  MARRIED  WOMEN  175 

sister,  the  widow  is  entitled  to  a  portion  of 
one  half  of  the  personal  property.  If  there 
are  none  of  these  heirs,  a  widow  is  entitled 
to  all  of  the  personal  estate. 

If  a  wife  dies  intestate,  her  husband  has 
a  life  estate  in  all  of  her  propert}^  and  if 
she  leaves  no  children  he  has  a  life  estate  in 
the  real  and  personal  property. 

MASSACHUSET^TS 

By  the  law  of  Massachusetts  the  rights  of 
dower  and  curtesy  both  obtain.  If  a  husband 
dies  intestate  and  there  is  no  issue  living,  the 
widow  receives  for  her  life  one  third  of  the 
personal  estate.  If  there  is  no  living  issue 
of  the  marriage,  a  widow  is  entitled  to  the 
real  estate  of  her  husband  absolutely  to  an 
amount  npt  exceeding  five  thousand  dollars 
in  value  and  to  a  life  interest  in  one  half  of 
the  remainder  of  his  real  estate,  or,  at  her 
election,  a  life  interest  and,  in  accordance 
with  the  legal  requirements,  her  dower  in  her 
husband's  real  estate  other  than  that  taken 
by  her  in  fee. 

A  widow  is  entitled  to  all  of  the  personal 
estate  up  to  the  amount  of  five  thousand  dol- 
lars in  value,  and  to  one  half  of  the  excess 
of  the  residue  above  ten  thousand  dollars. 
If  there  are  no  kindred  of  the  husband,  the 
widow  takes  the  whole  of  his  real  estate  in 


176  WOMAN  AND  THE  LAW 

fee.  If  a  wife  dies  witliout  leaving  a  will, 
and  there  has  been  issue  of  the  marriage  born 
alive,  the  widower  has  a  life  estate  in  her  real 
property.  If  there  has  been  no  issue  of  the 
marriage,  the  widower  has  an  interest  for  his 
life  in  one  half  of  his  wife's  real  estate.  If 
a  wife  leaves  no  issue  living,  the  husband 
takes  her  real  estate  absolutely  to  an  amount 
not  exceeding  five  thousand  dollars  in  value 
and  a  life  interest  in  the  residue  of  her  real 
estate.  If  a  wife  leaves  no  kindred,  the  hus- 
band takes  all  of  her  real  estate  absolutely. 
In  any  case,  if  a  wife  dies  intestate  the  hus- 
band takes  all  of  her  personal  estate. 

MICHIGAN 

The  right  of  dower  obtains  in  this  State,  but 
not  that  of  curtesy.  Such  dower  is  a  life  in- 
terest in  one  third  of  the  real  estate  of  the 
husband.  In  case  there  is  no  issue  of  the 
marriage  and  either  the  husband  or  the 
wife  dies  intestate,  one  half  of  the  real  es- 
tate goes  to  the  survivor.  If  there  are  no 
issue  of  the  marriage,  nor  father,  mother, 
brothers,  sisters,  or  the  children  of  bro- 
thers or  sisters,  all  of  the  estate  goes  to  the 
survivor. 

If  a  husband  dies  intestate,  one  third  of  his 
personal  property  goes  to  the  widow,  unless 


PROPERTY   OF   MARRIED  WOMEN  177 

if  there  is  but  one  child  or  the  issue  of  one 
child  living,  in  which  case  the  widow  receives 
one  half  of  such  property.  If  there  is  no 
child  living,  or  only  the  issue  of  a  deceased 
child,  and  the  personal  estate,  after  the  pay- 
ment of  debts,  does  not  exceed  one  thousand 
dollars,  such  estate  goes  entirely  to  the 
widow.  If  such  jjersonal  estate  exceeds  the 
sum  of  one  thousand  dollars,  such  an  excess 
is  to  be  distributed,  one  half  to  the  widow 
and  the  other  half  to  the  father  of  the  de- 
ceased, if  living;  otherwise,  equally  to  the 
mother,  brothers,  sisters,  and  the  issue  of  any 
deceased  brother  or  sister.  If  there  are  none 
of  these  persons,  the  widow  takes  all  such 
property. 

If  a  wife  dies  intestate,  one  third  of  her 
personal  estate  goes  to  her  husband  if  there 
are  children  living.  If  there  is  but  one  child, 
or  the  issue  of  one  child  deceased,  surviving 
her,  the  husband  has  one  half  of  the  personal 
estate.  If  there  is  no  child  or  the  issue  of  a 
deceased  child  surviving  her,  one  half  of  such 
an  estate  goes  to  the  husband  and  one  half  to 
her  father,  if  living.  If  her  father  is  not  liv- 
ing, then  the  one  half  goes  equally  to  her 
mother,  brothers,  sisters,  and  any  children  of 
brothers  and  sisters  deceased.  If  there  are 
none  of  these  persons,  then  all  of  such  estate 
goes  to  the  husband. 

12 


178  WOMAN  AND   THE  LAW 

MINNESOTA 

By  a  law  that  went  in  effect  on  the  9th  of 
March,  1875,  the  rights  of  dower  and  curtesy 
were  both  abolished.  If  either  husband  or 
wife  dies  intestate,  the  survivor,  if  there  is 
issue  of  the  marriage  living,  is  entitled  to 
the  homestead  for  the  period  of  her  life  and 
one  third  of  the  residue  of  the  real  estate  in 
fee  simple,  or  by  such  inferior  tenure  as  the 
deceased  was  possessed  of,  but  subject  to  its 
just  proportion  of  the  debts.  If  there  are 
no  descendants,  the  entire  estate  goes  abso- 
lutely to  the  survivor.  A  personal  estate  fol- 
lows the  same  rules. 

If  either  the  husband  or  the  wife  has  wil- 
fully and  without  a  just  cause  deserted  and 
lived  separately  from  the  other  for  the  entire 
year  next  prior  to  his  or  her  decease,  the  sur- 
vivor is  not  entitled  to  any  estate  whatever 
in  any  of  the  lands  of  the  deceased. 

MISSISSIPPI 

The  rights  of  dower  and  curtesy  have  been 
abolished  in  this  State.  If  either  the  hus- 
band or  the  wife  dies  intestate,  without  leav- 
ing children  or  the  descendants  of  any  chil- 
dren, the  entire  estate,  both  real  and  personal, 
goes  to  the  survivor.  But  if  there  are  one  or 
more  children  or  descendants  by  this  or  a 


PROPERTY   OF   MARRIED  WOMEN  179 

former  marriage,  the  sur^dving  wife  or  hus- 
band has  the  share  of  a  child  in  both  the  real 
and  the  personal  estate. 

MISSOURI 

The  rights  of  dower  and  curtesy  both  obtain 
in  this  State.  If  there  are  any  descendants 
living,  the  dower  of  a  widow  is  one  third  of 
the  real  estate  and  the  share  of  a  child  in  the 
personal  estate.  If  there  are  no  descendants, 
a  widow  is  entitled  to  all  of  the  real  and  per- 
sonal estate  which  came  to  her  husband  in 
right  of  the  marriage,  and  also  to  all  of  the 
undisposed  of  personal  property  which  by 
her  written  consent  came  into  her  husband's 
possession,  not  subject  to  the  payment  of  her 
husband's  debts.  The  wife  is  also  entitled 
to  one  half  of  the  real  and  personal  estate  of 
her  husband  absolutely,  and  subject  to  his 
debts.  If  there  are  any  descendants  by  a  for- 
mer marriage,  a  widow  may  elect,  in  lieu  of 
dower,  to  take  in  addition  to  her  real  estate 
the  personal  property  in  the  possession  of 
her  husband  that  came  to  him  in  right  of  the 
wife  by  means  of  the  marriage  or  by  her  con- 
sent, subject  to  her  husband's  debts. 

If  there  are  no  descendants  living,  the 
widow  may  elect  to  take  one  third  of  his  real 
estate  for  her  life,  free  from  liability  for  his 
debts,  or  according  to  the  provisions  men- 


180  WOMAN  AND   THE  LAW 

tioned  if  there  are  no  descendants.  If  there 
are  descendants  living,  the  widow,  in  lieu  of 
her  one-third  portion  for  life,  may  elect  to 
take  the  share  of  a  child  absolutely,  subject 
to  the  payment  of  any  debts.  If  any  person 
dies  intestate,  leaving  neither  descendants, 
father,  mother,  brothers,  sisters,  or  the  de- 
scendants of  brothers  or  sisters,  the  entire 
estate,  both  real  and  personal,  goes  to  the 
surviving  husband  or  wife.  A  homestead 
may  be  reserved  for  a  widow.  If  a  wife  dies 
leaving  no  descendants,  her  spouse  is  entitled 
to  one  half  of  both  real  and  personal  estate 
absolutely,  subject  to  her  debts. 

MONTANA 

In  this  State  the  right  of  dower  has  been 
retained,  but  that  of  curtesy  has  been  abol- 
ished. The  claims  of  the  husband  and  the 
wife  in  the  estate  of  the  other  are  equal.  If 
there  is  but  one  child,  or  the  lawful  issue  of 
one  child,  the  surviving  husband  or  wife  re- 
ceives one  half  of  the  entire  estate,  both  real 
and  personal.  If  there  is  more  than  one 
child,  or  one  child  and  the  lawful  issue  of 
one  or  more  deceased  children,  the  husband 
or  wife  receives  one  third  of  such  estate.  If 
there  is  no  issue  living,  the  surviving  hus- 
band or  wife  receives  one  half  of  the  estate, 
unless  there  is  neither  father,  mother,  bro- 


PROPERTY  OF  MARRIED  WOMEN  181 

ther,  sister,  or  their  descendants,  in  which 
case  the  h-usband  or  wile  takes  all  of  the 
property. 

By  an  act  of  March  6,  1891,  the  provision 
that  "a  married  woman  may  be  an  execu- 
trix, administratrix,  guardian,  or  trustee, 
and  bind  herself  and  the  estate  she  repre- 
sents without  any  act  of  assent  on  the  part 
of  her  husband, ' '  was  repealed. 

NEBEASKA 

The  rights  of  dower  and  curtesy  both  obtain 
in  this  State.  A  widow  is  entitled  to  the  use 
for  life  of  one  third  of  the  real  estate,  and 
in  case  the  husband  dies  intestate,  after  the 
payment  of  all  debts,  charges,  etc.,  to  the 
same  share  of  the  personal  estate  that  a  child 
receives.  If  there  is  no  issue  living,  a  widow 
takes  the  use  for  her  life  of  the  entire  estate, 
both  real  and  personal.  If  there  is  no  kin- 
dred of  the  husband,  the  widow  comes  into 
possession  of  the  real  estate  absolutely.  If 
a  wife  dies,  leaving  no  issue,  the  husband  has 
the  use  of  her  real  estate  during  his  lifetime. 
If,  however,  a  wife  leaves  issue  by  a  former 
husband,  such  issue  are  entitled  to  so  much 
of  the  estate  as  did  not  come  to  her  as  a  gift 
from  her  surviving  husband.  If  a  wife 
leaves  issue  by  the  surviving  husband  only, 
or  by  both  former  and  surviving  husbands. 


182  WOMAN  AND   THE   LAW 

then  the  surviving  husband  has  a  life  inter- 
est in  one  third  of  the  real  estate  of  his  de- 
ceased wife.  If  a  wife  dies  intestate,  after 
the  payment  of  her  debts  her  personal  estate 
is  distributed  in  the  same  way  as  her  real 
estate. 

NEVADA 

The  rights  of  dower  and  curtesy  have  both 
been  abolished  in  this  State.  At  the  death  of 
a  husband  one  half  of  the  community  prop- 
erty goes  to  the  wife.  If  the  husband  dies 
intestate  and  leaves  no  issue,  all  of  the  com- 
munity property  goes  to  the  wife,  and  with- 
out an  administration  if  she  secures  the  pay- 
ment of  all  debts  to  the  satisfaction  of  the 
creditors. 

If  either  the  husband  or  the  wife  dies  in- 
testate as  to  their  separate  estate,  and  there 
is  one  child  or  the  lawful  issue  of  one  child 
living,  the  surviving  wife  or  husband  re- 
ceives one  half  of  the  estate.  If  there  is 
more  than  one  child  living,  or  one  living 
and  the  lawful  issue  of  one  or  more  de- 
ceased children,  the  survivor  takes  a  third. 
If  there  is  no  issue  living,  the  survivor  takes 
a  one-half  portion,  providing  that  there  is 
either  father,  mother,  brother,  or  sister  of 
the  decedent  living.  If  there  are  no  such 
persons  living,  the  surviving  wife  or  hus- 
band is  entitled  to  the  whole  estate. 


PROPERTY  OF  MARRIED  WOMEN  183 

The  community  property  is  under  the  con- 
trol of  the  husband,  and  upon  the  death  of 
the  wife  belongs  to  him  without  an  adminis- 
tration, unless  he  has  abandoned  his  wife 
without  such  a  cause  as  would  secure  for  him 
a  divorce,  in  which  case  a  half  of  the  commu- 
nity property  is  at  her  disposal  by  testament, 
or,  in  the  absence  of  such  disposition,  de- 
scends to  her  heirs,  exclusive  of  her  husband. 

In  order  that  a  wife's  separate  property 
may  not  be  claimed  as  a  part  of  the  com- 
munity property  it  must  be  kept  inventoried 
and  recorded  according  to  law.  An  interest 
for  life  in  a  homestead  not  exceeding  five 
thousand  dollars  in  value  may  be  detained 
by  a  surviving  husband  or  wife  in  addition. 

NEW    HAMPSHIRE 

In  this  State  the  rights  of  dower  and  curtesy 
both  obtain.  The  widow  of  a  man  who  dies 
either  testate  or  intestate,  by  waiving  any 
provision  of  his  will  that  may  be  in  her 
favor,  is  entitled,  in  addition  to  her  dower 
and  homestead  rights,  to  a  portion  of  his  per- 
sonal estate  remaining  after  the  payment  of 
his  debts  and  the  expenses  of  administration, 
and  to  one-third  part  of  the  real  estate  if  the 
husband  leaves  issue  by  her  surviving  him, 
and  to  all  of  such  estate  if  he  leaves  no  issue 
surviving  him. 


184  WOMAN  AND   THE  LAW 

A  liusband  of  a  wife  dying  either  testate 
or  intestate,  by  waiving  any  provision  of  a 
will  in  liis  favor,  is  entitled,  in  addition  to  his 
estate  by  the  curtesy  and  his  homestead  right, 
if  any, to  one-third  part  of  his  wife's  personal 
estate  remaining  after  the  payment  of  debts 
and  the  expenses  of  administration  if  the 
wife  leaves  issue  surviving  her,  and  to  one 
half  of  such  estate  if  the  wife  leaves  no  issue 
surviving  her. 

If  a  husband  waives  the  provisions  of  his 
wife's  will,  and  foregoes  his  estate  by  the 
curtesy  and  his  homestead  right,  if  any,  he 
is  entitled  in  lieu  thereof,  after  the  payment 
of  debts  and  the  expenses  of  administration, 
to  a  one-third  part  to  possess  in  fee  if  the 
wife  leaves  issue  by  him  surviving  her,  also 
a  one-third  part  to  hold  during  his  life  if  the 
wife  leaves  issue  surviving  her  but  not  by 
him,  and  if  he  has  no  estate  by  the  curtesy 
in  the  real  estate,  then  one  half  to  hold  in  fee 
if  the  wife  leaves  issue  surviving  her.  Such 
a  waiver  must  in  all  cases  be  made  in  writ- 
ing and  filed  in  probate  office  within  one  year 
of  the  decease  of  the  husband  or  wife. 

NEW   JERSEY 

Both  dower  and  curtesy  obtain  in  this  State. 
If  either  a  husband  or  a  wife  dies  intestate, 
and  there  are  neither  descendants  nor  kin- 
dred, the  entire  estate  goes  in  fee  simple  to 


PROPERTY   OF  MARRIED  WOMEN  185 

the  survivor.  If  there  are  children,  a  widow 
has  one  third  of  the  personal  estate,  and  also 
a  life  interest  in  one  third  of  the  real  estate. 
If  there  are  no  children,  the  widow  is  entitled 
to  a  one-third  portion  of  the  x^ersonal  estate. 

THE   TERRITORY   OF    NEW    MEXICO 

In  this  Territory  the  right  of  curtesy  still 
obtains.  One  half  of  the  community  prop- 
erty goes  to  the  wife  whether  the  husband 
dies  testate  or  intestate.  In  addition  to  such 
a  right,  a  widow  is  entitled  to  a  one-fourth 
part  of  the  remainder  of  the  estate  of  her 
husband, ' '  provided  this  deduction  shall  only 
be  made  when  said  property  amounts  to  five 
thousand  dollars  and  the  heirs  be  not  descen- 
dants, although  it  may  exceed  this  sum  in 
the  absence  of  the  latter.  Also  from  the 
property  of  the  wife  the  fourth  shall  be  de- 
ducted as  the  marital  right  of  the  husband, 
and  upon  the  same  conditions,  should  the 
husband  without  this  aid  remain  poor."  If 
there  are  no  legitimate  children  surviving,  a 
widow  or  widower  is  heir  to  all  the  acquired 
property  of  the  marriage  community. 

NEW    YORK 

In  this  State  the  rights  of  dower  and  curtesy 
obtain,  A  widow  receives  one  third  of  the 
real  estate  of  her  husband  for  her  life,  and. 


186  WOMAN  AND   THE  LAW 

after  the  payment  of  debts,  one  third  of  the 
personal  estate,  unless  there  are  no  descen- 
dants, in  which  ease  she  is  entitled  to  one 
half  of  the  personal  estate  if  her  husband 
died  intestate.  If  there  are  neither  descen- 
dants, parent,  brother,  sister,  nephew,  or 
niece,  the  wife  has  the  whole  of  the  personal 
estate;  but  if  there  is  a  brother,  sister,  ne- 
phew or  niece,  the  widow  is  entitled  to  one 
half  of  the  personal  estate,  and  to  the  whole 
of  the  residue  if  it  does  not  exceed  two  thou- 
sand dollars.  If  the  residue  exceeds  in  value 
that  amount,  the  widow  is  entitled  to  receive 
two  thousand  dollars  in  addition  to  one 
half. 

The  husband  is  entitled  to  the  same  dis- 
tributive share  in  the  personal  property  of 
his  wife  as  she  has  in  his  property. 

NORTH    CAROLINA 

In  this  State  both  dower  and  curtesy  exist. 
If  there  are  neither  descendants  nor  kindred, 
the  widow  is  heir  to  the  entire  estate.  In 
case  there  are  not  more  than  two  children, 
and  the  husband  dies  without  leaving  a  will, 
one  third  of  the  personal  estate  goes  to  the 
widow.  If  there  are  more  than  two  children, 
the  widow  shares  equally  with  them.  If 
there  is  no  child  nor  a  legal  re]3resentative 
of  a  deceased  child,  one  half  of  the  estate 


PROPERTY   OF   MARRIED  M^OMEN  187 

goes  to  the  widow  and  the  other  half  goes  to 
the  kindred  of  the  deceased. 

If  a  wife  dies  intestate,  her  husband  has  a 
life  estate  in  her  real  property  if  there  was 
issue  born  alive,  and  all  of  her  personal  es- 
tate, subject  to  the  payment  of  her  debts. 


NORTH   DAKOTA 

The  rights  of  dower  and  curtesy  have  been 
abolished  in  this  State.  If  either  a  husband 
or  a  wife  dies  intestate,  leaving  only  one 
child  or  the  lawful  issue  of  one  child,  the  sur- 
viving wife  or  husband  is  entitled  to  one  half 
of  both  the  real  and  personal  estate.  If  there 
is  more  than  one  child  living,  or  one  child 
and  the  lawful  issue  of  one  or  more  children, 
the  survivor  receives  one  third  of  the  estate. 
If  there  is  no  issue  living,  the  survivor  re- 
ceives one  half  of  the  estate;  and  in  case 
there  is  no  issue  living,  and  neither  father, 
mother,  brother,  nor  sister,  the  whole  of  the 
estate  goes  to  the  survivor.  The  survivor  is 
also  entitled  to  retain  a  homestead. 


OHIO 

In  this  State  the  right  of  dower  obtains,  but 
the  right  of  curtesy  has  been  abolished,  ex- 
cept in  the  case  of  a  man  married  before  the 


188  WOMAN   AND   THE  LAW 

year  1887  and  in  respect  to  property  owned 
by  his  wife  before  that  date.  Other  than  in 
such  a  case,  either  a  husband  or  a  wife,  on 
the  death  of  the  other,  is  entitled  to  one  third 
of  the  real  estate  for  life.  If  either  the  hus- 
band or  the  wife  dies  intestate  and  there  are 
no  children  nor  their  legal  representatives 
living,  the  real  estate  should  all  pass  to  the 
survivor.  If  either  dies  intestate  and  there 
are  no  children,  the  widow  or  the  widower  is 
entitled  to  all  of  the  personal  property,  sub- 
ject to  the  payment  of  debts.  If  there  are 
children  or  their  legal  representatives,  the 
widow  or  widower  is  entitled  to  one  half  of 
the  first  four  hundred  dollars  and  to  one 
third  of  the  remainder  in  distribution.  There 
may  be  reserved  also  for  a  widow  an  amount 
not  exceeding  one  thousand  dollars'  value. 

By  a  law  of  June  30,  1899,  a  married 
woman  may  be  an  executrix  or  an  adminis- 
tratrix, and  by  a  law  of  April  18, 1893,  a  mar- 
ried woman  may  be  a  guardian. 

OKLAHOMA    TERRITORY 

The  rights  of  dower  and  of  curtesy  have 
been  abolished  in  this  Territory.  If  either  a 
husband  or  a  wife  dies  without  leaving  a 
will,  and  leaving  only  one  child  or  the  lawful 
issue  of  one  child,  the  survivor  is  entitled  to 
one  half  of  both  the  real  and  personal  prop- 


PROPERTY   OF   MARRIED  WOMEN  189 

erty.  If  there  are  two  or  more  children,  or 
one  child  and  the  descendants  of  one  or  more 
deceased  children,  the  widow  or  widower  re- 
ceives one  third  of  the  estate.  If  there  is  no 
issue  living,  the  survivor  receives  one  half  of 
the  estate,  and  if  there  is  neither  issue,  fa- 
ther, mother,  brother,  or  sister,  the  survivor 
is  entitled  to  all  of  the  estate. 

The  survivor  is  also  entitled  to  occupy  a 
homestead  until  the  same  is  otherwise  dis- 
posed of  according  to  law. 

OEEGON 

In  this  State  the  rights  of  dower  and  of  cur- 
tesy obtain,  and  curtesy  is  not  made  condi- 
tional upon  the  birth  of  a  living  child.  If 
either  a  husband  or  a  wife  dies  intestate,  and 
there  are  no  descendants  living,  the  real  es- 
tate descends  to  the  survivor.  If  there  is 
issue  living,  the  widow  is  entitled  to  one  half 
of  the  real  estate  and  to  one  half  of  the  per- 
sonal estate.  If  there  is  no  issue  living,  the 
widow  is  entitled  to  all  of  the  personal  prop- 
erty in  addition.  A  husband  is  entitled  to 
a  life  estate  in  all  of  the  real  property  of 
his  wife,  together  with  all  of  the  personal 
estate  in  case  there  are  no  living  descen- 
dants. If  there  are  such  descendants,  then 
the  husband  is  entitled  to  one  half  of  such 
estate. 


190  WOMAN  AND   THE' LAW 

PENNSYLVANIA 

In  this  State  the  rights  of  dower  and  curtesy 
both  obtain.  If  there  is  no  issue  living,  a 
widow  is  entitled  to  one  third  of  the  real  es- 
tate during  her  life  and  to  one  third  of  the 
personal  ])roperty  absolutely.  If  there  is  no 
issue  living,  but  there  are  collateral  heirs, 
the  widow  is  entitled  to  one  half  of  the  real 
estate,  including  a  homestead  house  for  her 
lifetime  and  one  half  of  the  personal  estate 
absolutely.  In  the  event  of  a  wife  dying 
without  leaving  a  will,  the  husband,  whether 
there  has  been  issue  born  alive  or  not,  is  en- 
titled to  a  life  estate  in  the  wife's  real  prop- 
erty and  to  all  of  her  personal  property  abso- 
lutely. If  there  is  neither  issue  nor  kindred 
and  no  will,  a  surviving  husband  or  wife 
takes  all  of  the  estate. 

KHODE   ISLAND 

The  rights  of  dower  and  of  curtesy  both  ob- 
tain in  this  State.  A  widow  is  entitled  to  a 
one-third  portion  of  the  real  estate,  and  also 
to  one  third  of  the  personal  estate  if  there  is 
no  issue  living.  In  the  event  of  there  being 
no  descendants  and  no  paternal  or  maternal 
kindred,  and  a  husband  or  wife  dies  intes- 
tate, the  wliole  of  the  estate  goes  to  the  sur- 
vivor.    If   there   is   no   issue   surviving,   a 


PROPERTY   OF  MARRIED  WOMEN  191 

widow  is  entitled  to  one  half  of  the  personal 
estate,  and  a  husband  is  entitled  to  all  of  his 
wife's  personal  estate  if  she  dies  intestate. 

SOUTH    CAEOLINA 

In  this  State  the  right  of  dower  obtains,  but 
not  that  of  curtesy.  If  either  a  husband  or 
a  wife  dies  intestate,  the  other  has  an  equal 
claim  on  the  property.  If  there  are  one  or 
more  children,  the  survivor  is  entitled  to  one 
third  of  the  real  estate  and  of  the  personal 
estate.  In  the  event  of  there  being  no  lineal 
descendants,  but  collateral  heirs,  the  sur- 
vivor is  entitled  to  one  half  of  the  entire  es- 
tate. If  there  are  no  lineal  descendants  or 
father,  mother,  brother,  sister,  or  child  of 
such  brother  or  sister,  or  brother  or  sister  of 
the  half-blood  or  lineal  ancestor,  the  survivor 
is  entitled  to  receive  two  thirds  of  the  estate, 
while  the  remaining  third  goes  to  the  next  of 
kin.  If  there  are  none  of  these  persons  or 
any  kin,  the  survivor  is  entitled  to  the  whole 
of  the  estate. 

SOUTH    DAKOTA 

Neither  the  right  of  dower  nor  of  curtesy 
obtains  in  this  State.  If  either  a  husband  or 
a  wife  dies  without  leaving  a  will,  and  leav- 
ing only  one  child  or  the  lawful  issue  of  one 


192  WOMAN  AND   THE   LAW 

child,  the  estate  passes  in  equal  shares  to  the 
surviving  husband  or  wife  and  the  child.  In 
the  event  of  there  being  more  than  one  child, 
or  one  child  and  the  lawful  issue  of  one  or 
more  deceased  children,  one  third  of  the  es- 
tate goes  to  the  surviving  husband  or  wife. 
If  there  are  no  children  living,  one  half  of 
the  estate  goes  to  the  husband  or  wife,  unless 
there  is  neither  father,  mother,  brother,  nor 
sister  of  the  decedent  living,  in  which  case 
it  all  passes  to  the  survivor. 

Either  husband  or  wife  is  entitled  to  ad- 
minister on  the  estate  of  the  other.  There 
may  be  reserved  also,  either  for  the  husband 
or  the  wife,  a  homestead  not  exceeding  one 
hundred  and  sixty  acres  in  extent,  or  one 
quarter  of  an  acre  in  a  town. 

TENNESSEE 

The  rights  of  dower  and  curtesy  obtain  in 
this  State.  The  widow  of  a  man  who  dies 
intestate  is  entitled  to  receive  one  third  of 
the  real  property,  unless  there  are  neither 
descendants  nor  heirs  at  law,  in  which  case 
the  widow  is  entitled  to  receive  the  whole  es- 
tate in  fee  simx)le.  The  widow  takes  of  the 
personal  estate  the  share  of  a  child,  unless 
there  are  no  lineal  descendants,  in  which  case 
she  is  entitled  to  receive  it  all.  If  a  wife  dies 
intestate,  the  husband  is  entitled  to  a  life  es- 


PROPERTY   OF  MARRIED  WOMEN  193 

tate  in  her  real  property  if  there  has  been 
issue  born  alive,  and  to  tlie  whole  of  her  per- 
sonal estate. 

TEXAS 

Neither  the  right  of  dower  nor  of  curtesy 
obtains  in  this  State.  If  there  are  any  lineal 
descendants  living,  a  surviving  husband  or 
wife  is  entitled  to  a  life  interest  in  one  third 
of  the  real  estate  and  to  one  third  of  the  per- 
sonal estate.  If  there  are  no  lineal  descen- 
dants, the  survivor  is  entitled  to  one  half  of 
the  real  estate  and  to  the  whole  of  the  per- 
sonal estate.  If  there  are  neither  father, 
mother,  brothers,  sisters,  nor  their  descen- 
dants, the  surviving  husband  or  wife  is  en- 
titled to  the  whole  estate,  both  real  and  per- 
sonal. 

In  addition  to  such  provision,  one  half  of 
the  communit^^  property  passes  to  the  widow 
or  widower  if  there  are  one  or  more  children, 
and  the  whole  of  such  property  if  there  are 
no  such  lineal  descendants  living.  A  widow 
is  also  entitled  to  retain  a  homestead  not  ex- 
ceeding five  thousand  dollars  in  value,  and 
the  same  right  is  provided  for  a  widower.  If 
either  a  husband  or  a  wife  dies  intestate  or 
becomes  insane,  and  there  are  no  living  de- 
scendants, and  the  other  party  to  the  mar- 
riage has  no  separate  estate,  the  community 
property  passes  to  the  survivor  without  an 

13 


194  WOMAN  AND   THE  LAW 

administration,  unless  there  is  a  guardian- 
ship by  the  State  of  the  insane  spouse.  If, 
however,  there  are  descendants,  the  survivor 
has  the  exclusive  management  of  the  com- 
munity propert>^,  provided  that  he  or  she  files 
an  application  for  an  appraisement  within 
four  years  of  the  death  or  the  establishment 
of  the  fact  of  the  insanity. 

But  a  woman  loses  the  right  thus  to  control 
the  community  property  if  she  contracts  an- 
other marriage.  In  the  event  of  the  insane 
person  being  restored  to  a  sound  mental  con- 
dition, an  accounting  of  such  property  must 
be  rendered. 

UTAH 

Neither  the  right  of  dower  nor  of  curtesy 
obtains  in  this  State.  If  either  a  husband  or 
a  wife  dies  intestate,  and  there  is  one  child  or 
the  issue  of  one  child  living,  the  widow  or 
widower  is  entitled  to  receive  one  half  of 
both  the  real  and  the  personal  property.  If 
there  is  more  than  one  child  living,  or  one 
child  and  the  issue  of  one  or  more  deceased 
children,  one  third  of  the  estate  goes  to  the 
survivor.  If  there  is  no  issue  living,  one 
half  of  the  estate  goes  to  the  survivor,  unless 
there  is  neither  father,  mother,  brother,  nor 
sister  living,  in  which  case  the  widow  or 
widower  is  entitled  to  receive  the  whole  of 
the  estate. 


PROPERTY  OF  MARRIED  WOMEN  195 

VERMONT 

The  rights  of  dower  and  curtesy  both  obtain 
in  this  State.  If  there  are  one  or  more  chil- 
dren living,  a  widow  has  an  interest  for  her 
life  in  one  third  of  the  real  estate  and  in  one 
third  of  the  personal  estate.  The  husband 
has  a  life  use  of  all  of  the  real  estate  if  there 
has  been  issue  of  the  marriage  born  alive, 
and  the  same  share  of  the  personal  estate  that 
his  wife  would  have  had  in  his  estate  had  she 
survived  him.  If  there  is  no  surviving  issue, 
either  the  husband  or  the  wife  surviving  may 
elect  to  waive  the  right  of  dower  or  of  cur- 
tesy respectively,  and  in  that  case  will  be  en- 
titled to  the  whole  of  the  estate  absolutely  if 
it  does  not  exceed  two  thousand  dollars  in 
value.  If  the  estate  does  exceed  that  sum, 
the  widow  or  widower  is  entitled  to  receive 
two  thousand  dollars  and  one  half  of  the  re- 
mainder, unless  there  are  no  kindred,  in 
which  case  the  entire  estate  passes  to  the 
survivor. 

Married  women,  by  a  law  of  November  1, 
1894,  are  empowered  to  serve  as  executors, 
administrators,  guardians,  and  trustees. 

VIRGINIA 

The  rights  of  dower  and  curtesy  both  obtain 
in  this  State.     A  wife  is  entitled  to  only  a 


196  WOMAN  AND   THE  LAW 

life  interest  in  one  third  of  the  real  estate, 
unless  there  are  neither  descendants  nor  pa- 
ternal nor  maternal  kindred,  in  which  case 
she  is  entitled  to  receive  all  of  the  real  estate. 
Under  like  circumstances,  a  husband  is  en- 
titled to  receive  all  the  real  estate  of  his  wife. 
If  there  is  no  living  issue,  a  widow  is  en- 
titled to  one  third  of  the  personal  estate.  If 
there  is  no  issue  by  her,  a  widow  is  entitled 
absolutely  to  so  much  of  the  personal  prop- 
erty, after  the  payment  of  all  debts  and 
charges,  as  had  been  acquired  by  the  intestate 
by  virtue  of  his  marriage  with  her  prior  to 
the  fourth  day  of  April,  1877,  and  which  re- 
mains in  kind  at  the  time  of  his  death. 

A  widow  is  also  entitled,  if  the  intestate 
leaves  issue  by  a  former  marriage,  to  one 
third  of  the  residue ;  if  there  are  no  such 
issue,  then  to  one  half  of  the  residue. 

A  widower  is  entitled  to  receive  all  of  the 
personal  estate  of  his  intestate  wife,  together 
with  a  use  for  life  of  her  real  estate  if  there 
has  been  issue  of  the  marriage  born  alive. 

WASHINGTON 

The  rights  of  dower  and  curtesy  have  been 
abolished  in  this  State.  If  either  a  husband 
or  a  wife  dies  intestate,  leaving  only  one 
child  or  the  lawful  issue  of  one  child,  the 


PROPERTY   OF  MARRIED  WOMEN  197 

widow  or  widower  is  entitled  to  one  half  of 
the  real  estate.  If  there  is  more  than  one 
child  living,  or  one  child  and  the  lawful  issue 
of  one  or  more  children  deceased,  a  widow  or 
widower  takes  one  third  of  the  real  estate. 
If  there  is  no  issue  living,  the  widow  or  wid- 
ower is  entitled  to  one  half  of  the  real  estate, 
unless  there  is  neither  father,  mother,  bro- 
ther, nor  sister  of  the  decedent  living,  in 
which  ease  the  survivor  is  entitled  to  all  of 
the  real  estate. 

If  there  is  issue  living,  the  surviving  hus- 
band or  wife  takes  one  half  of  the  personal 
estate,  otherwise  ail  of  such  estate.  The  sur- 
vivor is  entitled  also  to  one  half  of  the  com- 
munity property,  subject  to  the  community 
debts;  and  if  the  deceased  made  no  disposi- 
tion by  testament  of  the  other  half  of  the 
community  property,  it  passes  to  the  sur- 
vivor, unless  there  are  children  living. 

WEST    VIRGINIA 

In  this  State  the  rights  of  dower  and  curtesy 
both  obtain.  If  there  are  neither  descen- 
dants nor  kindred,  the  entire  real  property  of 
a  husband  or  wife  dying  intestate  passes  to 
the  survivor.  If  there  are  children  surviv- 
ing, the  widow  or  widower  is  entitled  to  one 
third  of  the  personal  estate,  and  if  there  are 


198  WOMAN  AND   THE  LAW 

no  children  then  to  all  of  it.  The  right  of  a 
Imsband  to  a  life  use  of  the  real  estate  of  his 
wife  does  not  depend  upon  their  having  had 
issue  born  alive. 


WISCONSIN 

In  this  State  the  rights  of  dower  and  curtesy 
both  obtain.  A  widow  is  entitled  to  a  life 
interest  in  one  third  of  the  real  estate,  and 
in  the  event  of  the  husband  dying  intestate 
she  is  entitled  to  the  share  of  a  child  in  the 
personal  estate.  If  there  is  no  lawful  issue,  a 
widow  is  entitled  to  the  entire  estate,  both 
real  and  personal.  The  husband  has  a  life 
interest  in  the  real  estate  of  his  wife  that  is 
not  disposed  of  by  the  will,  or  in  all  of  the  es- 
tate if  the  wife  died  intestate,  unless  she  left 
issue  by  a  former  husband,  in  which  case  such 
issue  takes  such  property,  free  from  the  right 
of  the  surviving  husband  to  hold  the  same  as 
tenant  by  the  curtesy.  If  the  wife  dies  intes- 
tate and  leaves  no  issue,  the  widower  is  en- 
titled to  the  entire  estate,  both  real  and 
personal. 

There  may  also  be  reserved  for  a  widow 
a  homestead  of  not  more  than  forty  acres  of 
farm  land,  or  one  quarter  of  an  acre  in  a 
town,  whicli  at  her  subsequent  marriage  or 
death  passes  to  the  heirs  of  the  former  hus- 
band. 


PROPERTY  OP  MARRIED  WOMEN  199 

WYOMING 

The  rights  of  dower  and  curtesy  have  been 
abolished  in  this  State.  If  either  a  husband 
or  a  wife  dies  intestate,  leaving  a  descendant, 
one  half  of  the  estate,  both  real  and  personal, 
goes  to  the  survivor.  If  there  are  no  descen- 
dants, three  fourths  of  the  estate  goes  to  the 
survivor,  unless  the  estate,  both  real  and  per- 
sonal, does  not  exceed  ten  thousand  dollars, 
in  which  case  it  all  passes  to  the  survivor. 

If  all  of  the  community  property  does  not 
exceed  fifteen  hundred  dollars  in  value,  the 
whole  may  be  assigned  to  the  widow  and  chil- 
dren, or  to  the  children  if  tliere  is  no  widow. 
But  if  a  widow  has  a  maintenance  derived 
from  her  own  property  equal  to  the  portion 
provided  for  her  by  these  provisions,  then 
the  whole  property  so  provided,  other  than 
the  homestead,  passes  to  the  minor  children. 


THE  CONTRACTS  OF  MARRIED 
WOMEN 

THE  capacity  that  married  women  enjoy 
at  the  present  time  in  the  United  States 
of  entering  into  contractual  relations  is  due 
to  a  development  in  the  principles  of  equity, 
and  also  to  the  series  of  statutes  that  have 
come  to  be  generally  known  as  the  married 
women's  acts. 

As  it  is  of  the  essence  of  a  contract  that 
there  shall  be  at  least  two  parties  capable  of 
giving  their  consent,  and  as  at  the  common 
law  husband  and  wife  are  one  person,  we  see 
the  chief  reason  why  contracts  between  hus- 
band and  wife  are  invalid,  and  as  under  that 
system  of  law  the  wife  is  regarded  as  having 
no  will  of  her  own,  but  as  being  under  the 
power  and  control  of  her  husband,  we  see 
also  the  chief  reason  why  the  contracts  of 
married  women  with  third  parties  are  also 
invalid  at  the  common  law.  But  in  equity 
the  legal  fiction  of  the  unity  of  husband  and 
wife  has  never  been  adopted,  and,  indeed,  the 
trend  of  development  has  been  in  quite  the 
other  direction,  realizing  a  greater  individu- 
ality for  married  women.    For  many  years 

200 


CONTRACTS  OF  MARRIED  WOMEN  201 

legislation  in  the  form  of  statutes  has  also 
been  at  work  breaking  down  the  common-law 
unity  of  husband  and  wife,  and  giving  to 
married  women  a  large  capacity  to  become  a 
part;^^  to  contracts.  But  the  common-law  rule 
that  all  the  contracts,  agreements,  covenants, 
promises,  and  representations  of  married 
women  are  null  and  void,  although  for  the 
greater  part  done  away  with  by  the  develop- 
ments of  equity  and  by  statutes,  still  exist  to 
the  extent  that  any  capacity  of  a  married 
woman  to  contract  is  regarded  as  exceptional, 
and  must  be  asserted  and  proved. 

There  were  certain  circumstances  under 
which  at  the  connnon  law  married  women 
had  the  capacities  of  unmarried  women,  and 
could  therefore  contract.  Such  was  the  case 
when  the  husband  was  an  alien  residing 
abroad,  or  when  he  had  been  exiled,  or  had 
abjured  the  realm,  or  was  civilly  dead.  So 
in  the  United  States  it  is  a  general  rule  that 
a  permanent  departure  from  the  State  and  a 
renunciation  of  his  married  rights  by  a  hus- 
band vests  his  wife  with  the  capacities  of 
feme  sole. 

While  the  present  capacity  of  married 
women  depends  largely  upon  statutes,  it  is 
very  generall}^  admitted  that  the  various  acts 
providing  for  the  separate  estate  of  a  mar- 
ried woman  do  not  enable  her  to  make  per- 
sonal contracts.    There  are,  however,  three  of 


202  WOMAN   AND   TllK   LAW 


lior  conlrnt'ls  that  luo  recognized  as  binding' 
on  her  statntory  separate  property:  first, con- 
tracts which  wonUl  bind  her  oqnitable  sepa- 
rate })ro];)erty ;  second,  contracts  which  are 
expressly  anthorized  by  the  statnte,  as  when  a 
statnte  enii)0wers  her  to  make  contracts  "ve- 
latiui;-  to"  or  "with  reference  to"  her  prop- 
erty; third,  contracts  which  arc  unpliedly 
antliorized  by  statnte— that  is,  contracts 
wliich  are  necessary  for  the  ]iossession  and 
enjoyment  of  licr  property  which  it  is  in- 
tended nndcr  the  statnte  she  shonld  liave. 

\\'c  have  seen  how,  according  to  the  com- 
mon law,  contracts  between  hnsband  and 
wife  are  void  for  want  of  parties  and  the 
wife's  power  to  consent,  Tn  etpiity,  liowcver, 
the  dual  personality  of  luisbaml  and  wife  is 
recognized,  so  also  the  capacity  of  married 
women  to  hold,  convey,  and  charge  by  con- 
tract property  wliich  is  regarded  as  their 
C(pii table  se]iarate  property.  The  courts  of 
{Hpiity  will  enforce  a  wife's  agreement  with 
her  husband  respecting  her  separate  prop- 
erty, without  by  so  doing  recognizing  any 
personal  obligation  that  she  may  attempt 
to  asfsume.  A  contract  between  a  married 
woman  and  her  husband  nmst  of  course  be 
equitable  and  valid  in  all  rcsjvcts,  else  it 
is  void.  The  statutes  of  the  sc\cral  States 
in  regard  to  this  mattei-  are  confusing. 
Some  of  these   statutes   expressly   prohibit 


CONTRACTS  OT  MAK'ini:!)  WOMION  20:5 

all  coiilrncls  or  somo  coiilracls  btMwctMi  lius- 
bniul  uiul  \\\[\\  \vliil(>  oIIum's  cxprossly  mu- 
(liori/.(>  llu>m.  Tlir  iiinrruMl  wouumi's  .-u'ts, 
wliioli  (K>  uo\  voW'v  lo  colli r;u'(s  Ih»I\V(>(M1  Iius- 
baiul  and  \\\\\\  but  i;'i\o  a  maniod  woman 
ilio  capacKy  to  coiitracl  with  (ho  assonl  oi' 
joimior  of  boi'  liiisbaiul,  do  nol,  as  a  rul(\ 
onablo  hor  lo  coiilrai'l  ^villl  him,  as  the  iv- 
^luiroinoiit  ol'  (ho  joindtM-  of  Iho  husband  is 
l>ivsiimed  to  oxchido  Iho  idoa  ol"  an  intoiilion 
to  iiu'ludo  contracts  willi  liimsclf.  Such  of 
the  statutes  as  do  not  spccilically  ivl'cr  to  lius- 
band  and  wife,  but  which  i>ivo  to  marri(»d 
women  tlio  rigid,  to  contract  generally,  have 
given  rise  to  nuu'h  controversy.  In  some 
cases,  based  ou  these  statutes,  (he  decisions 
hold  (liat  such  slalules  (io  not  destroy  the 
uiiil>  of  husband  and  wirt\  but  sini})ly  ve- 
mo\e  tin*  disabililies  ol"  marritHJ  women,  and 
liiat,  (hererore,  the  disability  of  (lie  husband 
and  wil'e  to  contract  because  of  tlieir  unity 
is  nol  removed,  (^n  the  otiier  hand,  tlie  deci- 
sions in  some  cases  give  such  statutes  full 
elTect,  holding  llial  (hey  enabl(>  husband  and 
wife  to  contract. 

The  Slides  of  Minnesota,  Noi'lh  ('aroliua. 
Nevada,  Colorado,  and  the  Terridn y  of  New 
Mexico  have  sjiecitically  enacted  (hat  all  con- 
(racts  betwHHMi  husband  and  wife  are  valid. 
i>ut  Miniu^sota  and  New  Mi^xico  have  also 
|>ro\  {(KmI  that  in  all  I'ases  whtMV  the  rights  of 


2U4  WOMAN  AND   THE  LAW 

creditors  or  purchasers  in  good  faith  come  in 
question,  the  husband  is  held  to  have  notice 
of  the  contracts  and  debts  of  his  wife,  and, 
vice  versa,  the  wife  of  the  husband's. 

By  the  law  of  the  State  of  Louisiana,  a 
contract  of  sale  between  husband  and  wife 
can  be  made  in  three  cases  only :  first,  when 
one  of  the  spouses  makes  a  transfer  of  prop- 
erty to  the  other,  who  is  judicially  separated 
from  him  or  her,  in  payment  of  his  or  her 
rights;  second,  when  a  transfer  made  by  a 
husband  to  his  wife,  even  though  they  are  liv- 
ing together,  has  a  legitimate  cause,  as,  for 
example,  the  replacing  of  her  dotal  or  other 
effects  that  had  been  alienated ;  third,  when  a 
wife  makes  a  transfer  of  property  to  her  hus- 
band in  payment  of  a  sum  promised  to  him 
as  a  dowry. 

According  to  the  statutes  of  the  States 
of  Maine,  Illinois,  Iowa,  Delaware,  Oregon, 
Washington,  and  the  Territory  of  New  Mex- 
ico a  married  woman  may  constitute  her  hus- 
band her  attorney,  and  also  release  to  him 
the  riglit  to  control  her  property  or  any  part 
of  it,  and  to  dispose  of  the  income  for  their 
mutual  benefit,  and  may  also  in  writing  re- 
voke such  an  agencj''. 

By  statutes  which  su]3plant  the  rule  of  the 
common  law,  a  married  woman  may  very 
generally,  throughout  the  United  States  at 
the  present  time,  enter  into  contracts  with 


CONTRACTS  OF  MARRIED  WOMEN  205 

third  parties,  which  contracts  may  be  either 
oral  or  written,  sealed  or  unsealed.  Such 
statutes  are  found  in  the  States  of  New 
Hampshire,  Massachusetts,  Vermont,  New 
York,  New  Jersey,  Indiana,  Illinois,  Iowa, 
Minnesota,  Oregon,  Colorado,  Mississippi, 
and  in  the  Territory  of  New  Mexico.  There 
are  also  found,  however,  certain  limitations 
upon  the  general  capacity  of  a  married  wo- 
man to  contract.  So,  for  example,  a  married 
woman  in  the  States  of  New  Hampshire,  Ver- 
mont, and  Georgia  cannot  be  made  liable  as 
an  endorser,  surety,  or  guarantor  for  her  hus- 
band, and  in  New  Jersey,  Indiana,  and  Geor- 
gia as  a  surety  for  any  person,  and  in  the 
State  of  Illinois  a  married  woman  may  not 
enter  into  a  partnership  business  without  the 
consent  of  her  husband,  except  when  the  hus- 
band has  deserted  her  or  is  idiotic  or  insane, 
or  is  confined  in  a  penitentiary.  Some  spe- 
cial cases  are  also  provided  for  by  statute, 
as  in  the  State  of  Pennsylvania,  where  a  mar- 
ried woman  may  contract  for  the  purchase  of 
a  sewing-machine  for  her  own  use,  and  where 
she  may  give  a  refunding  bond  for  a  distrib- 
utive share  or  legacy  which  will  bind  her 
estate  and  release  the  administrator  as  if  she 
were  a  feme  sole,  and  in  Indiana,  where  a 
married  woman  may  execute  an  official  bond 
as  principal.  In  the  State  of  Colorado,  under 
the  statute  a  married  woman  may  execute 


206  WOMAN  AND  THE  LAW 

any  bond,  bill,  note,  or  other  instrument  for 
the  payment  of  money,  and  if  the  considera- 
tion thereof  went  to  the  benefit  of  her  estate 
she  is  liable  thereon. 

While  under  the  common  law  a  married 
woman  could  not  lease  property,  she  may  do 
so  by  statute  and  be  liable  for  the  rent,  and 
if  she  is  able  to  lease  property,  she  is  also 
liable  under  an  implied  jDromise  for  the  use 
and  occupation  of  the  premises  which  she 
holds  after  the  expiration  of  the  lease,  and 
this  is  true  thoug^h  her  husband  is  living  with 
her.  So  while  under  the  common  law  a  mar- 
ried woman  was  not  liable  for  repairs  to  her 
property,  yet  under  the  statutes  a  contract 
for  repairs  is  regarded  as  one  that  is  bene- 
ficial to  her  estate,  and  one  that  she  has  im- 
l^lied  autho]-it\^  to  make. 

In  the  course  of  the  construction  of  stat- 
utes, some  general  rules  have  been  devel- 
oped relating  to  the  contracts  of  married 
women  which  will  be  found  of  service  in  a 
more  detailed  study  of  this  subject.  They 
may  be  stated  as  follows : 

First.  The  general  statutes  which  relate  to 
contracts,  but  do  not  expressly  refer  to  mar- 
ried women,  do  not  directly  affect  the  valid- 
ity of  married  women's  contracts,  and  apply 
to  these  only  so  far  as  they  may  be  valid 
under  other  statutes. 

Second.  The  statutes  that  secure  to  a  mar- 


CONTRACTS  OF  MARRIED  WOMEN  207 

ried  woman  the  separate  use  and  enjoyment 
of  her  property,  and  which  either  do  not  re- 
fer to  her  contracts  at  all  or  authorize  con- 
tracts "relating  to"  or  ''with  respect  to" 
such  property,  do  not  enable  her  to  contract 
generally,  but  only  in  connection  with  such 
property. 

Third.  The  contracts  of  a  married  woman 
which  would  be  binding  on  her  equitable  sep- 
arate property  in  equity  are  valid  as  against 
her  statutory  separate  property  in  the  same 
way. 

Fourth.  With  respect  to  her  statutory 
property,  a  married  woman  is  not  regarded 
as  a  feme  sole.  She  has  by  implication  the 
capacity  to  make  such  contracts,  and  no 
others,  as  are  necessary  to  the  exercise  of 
such  capacities  or  to  the  enjoyment  of  the 
rights  that  are  expressly  given  to  her  by 
statute.  So,  for  example,  when  a  statute 
reads  that  a  married  woman  may  "hold, 
enjoy,  and  possess  her  property  as  if 
sole,"  she  may  make  all  contracts  that  are 
necessary  to  such  holding  and  enjoyment. 
She  may  contract  for  legal  services  in  rela- 
tion to  her  property,  or  for  manual  labor 
on  it,  or  for  the  cultivation  and  sale  of 
crops. 

Fifth.  When  a  statute  authorizes  a  mar- 
ried woman  to  contract  "with  reference  to" 
or  "with  respect  to"  her  separate  property. 


208  WOMAN  AND   THE   LAW 

her  contracts,  to  be  valid,  must  come  strictly 
within  the  meaning  of  these  terms. 

Sixth.  A  statute  that  expressly  authorizes 
or  prohibits  certain  specified  contracts  is 
strictly  construed. 

Seventh.  Where  a  statute  expressly  en- 
ables a  married  woman  to  contract  as  if  she 
were  unmarried,  she  may  make  contracts  gen- 
erally entirely  unaffected  by  her  state  of  cov- 
erture, but  it  is  doubtful  whether  she  may 
make  such  contracts  directly  with  her  hus- 
band. 

Eighth.  If  a  statute  which  enables  a  mar- 
ried woman  to  contract  requires  that  her  con- 
tracts be  executed  in  a  certain  way,  all  such 
requirements  must  be  substantially  complied 
with  to  give  her  contract  any  validity.  If, 
however,  she  has  the  capacity  to  contract  in- 
dependently of  the  statute  which  requires  the 
foraialities,  a  contract  by  her  which  does  not 
comply  therewith  may  still  be  valid. 

Ninth.  The  ability  of  a  married  woman  to 
contract  personally  or  as  to  things  movable 
de])ends  on  the  law  of  the  place  where  the 
contract  is  made ;  to  contract  as  to  immovable 
things,  on  the  law  of  the  place  where  such 
things  lie. 

Tenth.  The  validity  of  a  contract  and  the 
rights  of  the  parties  under  it  depend  upon 
the  law  existing  at  the  time  the  contract  is 
made,  so  a  statute  providing  that  "all  con- 


CONTRACTS  OF  MARRIED  WOMEN  209 

tracts  of  married  women  shall  be  valid ' '  does 
not  affect  contracts  made  prior  to  the  enact- 
ment of  the  statute. 

The  rights  of  married  women  to  execute 
deed  of  i^roiDerty  are  considered  separately. 


14 


DEEDS  BY  MARRIED  WOMEN 

IN  many  of  the  States  no  married  woman 
can  convey  or  encmnber  lier  separate 
real  estate  unless  the  husband  join  in  the 
deed.  This  is  the  rule  in  the  States  of  Ver- 
mont, Rhode  Island,  New  Jersey,  Indiana, 
Michigan,  Minnesota,  Maryland,  Delaware, 
West  Virginia,  North  Carolina,  Kentucky, 
Missouri,  Texas,  Washington,  Florida,  Loui- 
siana, and  in  the  Territory  of  New  Mexico. 
In  Maine  a  married  woman  cannot  convey 
real  estate  that  has  been  directly  or  indi- 
rectly conveyed  to  her  by  her  husband,  or 
paid  for  by  him,  or  given  or  devised  to  her 
by  his  relatives,  without  his  joinder  in  the 
deed,  except  real  property  conveyed  to  her 
as  security  or  in  payment  of  a  bona-fide  debt 
actually  due  to  her  from  the  husband.  In 
Minnesota  exceptions  are  made  of  mortgages 
to  secure  the  purchase  money,  and  of  leases 
not  exceeding  three  years  in  duration. 

In  a  number  of  States  no  separate  prop- 
erty of  the  wife,  either  real  or  personal,  can 
be  sold,  conveyed,  transferred,  or  encum- 
bered by  the  husband  without  the  consent  of 
the  wife.     This  is  the  rule  in  the  States  of 

210 


DEEDS   BY  MARRIED  WOMEN      211 

Vermont,  Rhode  Island,  Connecticut  (as  to 
real  estate  only),  New  Jersey,  Pennsylvania, 
Ohio,  Indiana,  Virginia,  West  Virginia,  Ten- 
nessee, Missouri,  Texas,  Nevada,  Colorado, 
Washington,  Idaho,  AVyoming,  Florida,  and 
in  the  Territory  of  Arizona.  In  Pennsyl- 
vania such  consent  of  a  wife  to  join  in  a 
deed  must  be  evidenced  by  writing,  duly  ac- 
knowledged by  her  before  a  judge,  and  also 
by  joinder  in  the  deed  itself. 

In  a  number  of  the  States  any  married 
woman  of  full  age  may  join  with  her  hus- 
band in  conveying  any  of  her  real  or  personal 
estate,  as  in  the  States  of  New  Hampshire, 
Vermont,  Rhode  Island,  Connecticut,  Penn- 
sylvania, Ohio,  Indiana  (real  estate  only), 
Illinois,  Iowa  (real  estate  only),  Minnesota, 
Maryland,  Delaware,  Virginia,  West  Vir- 
ginia, North  Carolina  (real  estate  only),  Ken- 
tucky, Tennessee,  Missouri,  Arkansas,  Texas, 
Oregon,  Nevada,  Idaho,  Georgia,  Alabama, 
Florida,  the  District  of  Columbia,  and  in  the 
Territories  of  Arizona  and  New  Mexico.  In 
Rhode  Island  and  Nevada  the  husband  and 
wife  may  convey  any  real  estate  of  the  wife 
by  deeds,  signed,  sealed,  and  acknowledged 
by  each  of  them  separately  and  delivered. 
In  other  States  the  wife  may  execute  and  ac- 
knowledge all  deeds,  mortgages  of  her  sepa- 
rate estate,  bills  of  sale,  or  other  conveyances 
without  the  joinder  of  the  husband  as  re- 


212  WOMAN  AND   THE  LAW 

quired  above,  except,  probably  in  all  States, 
as  to  the  husband's  curtesy  or  other  rights. 
Such  is  the  rule  in  the  States  of  Maine,  Mas- 
sachusetts, New  York,  Wisconsin,  Iowa,  Kan- 
sas, Nebraska,  Tennessee,  Arkansas,  Colo- 
rado, Washington,  Wyoming,  the  Dakotas, 
Utah,  South  Carolina,  Mississippi,  and  the 
Territory  of  Arizona. 

In  most  of  the  States  a  wife  executes  a 
deed,  when  the  husband  joins,  in  the  same 
manner  and  subject  to  the  same  rules  as  in 
other  cases  of  deeds  by  joint  grantors.  But 
in  other  States  the  wife  must  acknowledge 
the  deed  and  her  consent  be  provided  for  by 
a  separate  examination  or  other  formality. 
Such  is  the  rule  in  the  States  of  Rhode  Is- 
land, New  Jersey,  Pennsylvania,  Ohio,  Dela- 
ware, Virginia,  West  Virginia,  North  Caro- 
lina, Kentucky,  Tennessee,  Texas,  California, 
Oregon,  Nevada,  Washington,  Idaho,  Mon- 
tana, Georgia,  Florida,  Louisiana,  the  District 
of  Columbia,  and  the  Territory  of  New  Mex- 
ico. In  Rhode  Island  any  personal  property 
other  than  chattels  real,  household  furniture, 
plate,  jewels,  stock  or  shares,  money  in  a  bank 
or  secured  by  a  mortgage,  may  be  sold  or  con- 
veyed by  a  married  woman  as  if  sole,  and  she 
may  make  such  contracts  of  sale  accordingly. 
But  this  law  does  not  authorize  her  to  trans- 
act business  as  a  sole  trader.  In  Connecticut 
no  sale  or  transfer  of  a  wife's  personalty  or 


DEEDS   BY   MARRIED  WOMEN      213 

any  interest  therein  is  valid  unless  the  wife 
or,  if  she  is  dead,  those  in  whom  her  estate 
has  vested  or  their  guardians  join  in  a  writ- 
ten conveyance  thereof,  and  all  reinvestments 
shall  be  in  the  name  of  the  husband  as  trus- 
tee. The  codes  of  California  and  the  Da- 
kotas  provide  that  ''the  wife  may,  without 
consent  of  her  husband,  convey  her  separate 
property. ' '  By  the  law  of  Louisiana  a  mar- 
ried woman  cannot  make  a  donation  inter 
vivos  without  the  special  consent  or  concur- 
rence of  her  husband  or  unless  authorized 
by  the  court.  By  the  laws  of  Michigan,  Ore- 
gon, and  Wyoming  a  joint  deed  of  land  in 
the  State  by  a  wife  non-resident  with  her  hus- 
band has  the  same  effect  and  may  be  acknow- 
ledged or  proved  as  if  she  were  sole.  The 
law  of  Iowa  reads : ' '  Every  conveyance  made 
by  a  husband  and  wife  shall  be  deemed  suffi- 
cient to  pass  any  and  all  right  of  either  in 
the  property  conveyed,  unless  the  contrary 
appear  in  the  conveyance." 

In  many  States  a  wife  must  be  separately 
examined  apart  from  her  husband  as  to  all 
conveyances  of  real  estate  in  which  she  joins. 
Thus,  "she  must  be  examined  privily  (apart 
from  her  husband)  and  declare  that  the  in- 
strument is  her  voluntary  act,  and  that  she 
does  not  wish  to  retract  it."  So  it  is  pro- 
vided in  the  States  of  Rhode  Island,  Ohio, 
Virginia,  West  Virginia,  Texas,  California, 


214  WOMAN   AND   THE  LAW 

Nevada,  Idaho,  Montana,  and  the  District  of 
Columbia.  In  other  States  the  form  of  ac- 
knowledgment, so  far  as  it  expresses  the 
wife's  examination,  is  as  follows:  "And  the 
said  Mary  Smith,  being  at  the  same  time  pri- 
vately examined  by  me  apart  from  her  hus- 
band, acknowledged  that  she  executed  the 
said  indenture  willingly,  without  compulsion 
or  threat,  or  fear  of  her  husband's  displea- 
sure. ' '  In  the  States  of  Tennessee,  Arkansas, 
Oregon,  Washington,  and  Georgia  it  is  suffi- 
cient that  she  acknowledge  before  the  officer, 
and  without  private  examination,  that  she 
joined  of  her  own  free  will  and  consent,  with- 
out any  compulsion  or  force  used  by  her  hus- 
band. In  Pennsylvania  and  Ohio  the  officer 
must  examine  the  wife  separately,  read  the 
full  contents  of  the  conveyance  to  her,  and 
she  m.ust  declare  that  she  executed  it  volun- 
tarily and  without  coercion.  In  New  Jersey, 
North  Carolina,  Kentucky,  Texas,  Idaho, 
and  Louisiana  a  conveyance  must  be  acknow- 
ledged by  a  wife,  a]3art  from  her  husband. 
Statutory  forms  of  the  certificate  of  ac- 
knowledgment are  provided  in  several  of  the 
States. 

In  two  States,  Maryland  and  Florida,  the 
husband  and  wife  must  join  in  all  sales, 
ti-ansfers,  and  conveyances  of  the  wife's 
personal  propertj^  Any  married  woman 
may  release  her  dower  by  joinder  in  the 


DEEDS   BY  MARRIED   WOMEN      215 

deed  with  her  husband  in  the  States  of 
New  Hampshire,  Rhode  Island,  New  Jer- 
sey, Pennsylvania,  Ohio,  Illinois,  Wisconsin, 
Maryland,  Virginia,  West  Virginia,  Ken- 
tucky, Missouri,  Arkansas,  W^ashington, 
South  Carolina,  Georgia,  Florida,  and  Loui- 
siana. By  the  law  of  the  State  of  New  York, 
where  a  husband  and  wife  hold  land  as  ten- 
ants, joint  or  in  common,  ''by  entireties," 
as  it  is  called,  they  may  make  valid  partition 
among  themselves  which  will  bar  dower  if 
so  expressed  in  the  instrument.  Generally, 
if  the  husband  and  wife  are  both  living,  both 
must  join  in  a  deed  in  order  to  release  a 
homestead  interest  belonging  to  either.  In 
a  few  States  any  married  woman  aged  twen- 
ty-one years  may  execute  and  deliver  her 
power  of  attorney  to  convey  land  as  if  sole, 
and  this  is  the  law  in  New  York,  Wisconsin, 
and  Delaware.  In  most  of  the  States  a  wife 
may  convey  her  land  by  power  of  attorney, 
only  it  must  be  executed  and  acknowledged 
like  a  deed.  By  the  Louisiana  law,  a  married 
woman  having  a  mortgage  or  privilege  on  the 
property  of  her  husband  may  appoint  one  or 
more  agents  with  power  in  her  behalf,  during 
her  temporary  or  pennanent  absence  from  the 
State,  to  intervene  in  any  contract  of  mort- 
gage or  sale  made  by  the  husband,  and  sign  in 
her  behalf  such  remuneration  of  said  mort- 
gage or  privilege  as  the  wife  herself  might  do 


216  WOMAN  AND   THE  LAW 

if  personally  present,  and  such  power  may  be 
either  general  or  special,  and  may  be  exe- 
cuted in  the  United  States  before  any  judge, 
and  in  foreign  countries  before  any  consul, 
vice-consul,  or  consular  or  commercial  agent 
of  the  United  States.  Every  general  author- 
ity, even  though  stipulated  for  in  the  mar- 
riage contract,  is  void,  except  so  far  as  it 
respects  the  administration  of  the  property 
of  the  wife. 


WILLS  BY  MARRIED  WOMEN 

IN  nearly  all  of  the  States  it  is  expressly 
enacted  that  a  married  woman  of  full  age 
and  sound  mind  may  devise  her  separate  real 
or  personal  property  by  an  ordinary  will, 
without  the  husband's  consent,  as  if  sole. 
Where  this  is  not  expressly  declared  to  be 
the  law,  it  is  generally  implied  if  there  is 
no  provision  to  the  contrary.  There  are, 
however,  certain  restrictions  found  in  the 
statutes.  Such  a  will  may  not,  without  his 
written  consent  or  joinder  in  the  will,  im- 
pair the  rights  of  the  husband  (1)  to  curtesy 
in  New  Hampshire,  Massachusetts,  Rhode 
Island,  New  Jersey,  Pennsylvania,  Mary- 
land, Delaware,  North  Carolina,  Tennessee, 
Missouri,  and  Oregon;  (2)  to  the  use  of  one 
half  of  her  real  estate  for  life,  if  they  had 
no  issue  born  alive,  in  Massachusetts;  (3)  to 
one  half  of  her  personal  property  in  Massa- 
chusetts and  Kansas;  (4)  to  his  distributive 
share,  as  if  she  died  intestate,  in  New  Hamp- 
shire, New  Jersey,  Pennsylvania,  and  Mary- 
land; (5)  to  his  right  to  administer  her  per- 
sonalty without  account  not  so  bequeathed 
in  Rhode  Island;  (6)  so  the  wife  may  not 

217 


218  WOMAN  AND   THE  LAW 

by  a  will  devise  more  than  one  half  of  her 
property,  real  or  personal,  away  from  her 
husband  in  Kansas  and  Colorado ;  ( 7 )  the 
husband  must  consent  and  subscribe  the  will 
in  all  cases  in  Maryland,  and  also  in  this 
vState  the  wife  must  be  ]Drivately  examined, 
and  the  will  must  be  made  sixty  days  before 
her  death.  In  Pennsylvania  a  husband  may 
not  be  a  witness  to  such  a  will. 

In  the  States  of  Pennsylvania,  North  Caro- 
lina, South  Carolina,  Georgia,  and  Kentucky 
a  married  woman  may  make  a  will  where  an 
express  power  to  will  her  separate  estate  is 
reserved  or  granted  to  her  in  the  instrument 
creating  the  same  or  by  marriage  contract. 

In  Massachusetts  a  married  woman,  de- 
serted by  or  living  apart  from  her  husband 
for  a  justifiable  cause,  when  the  proper  court 
has  entered  a  decree  establishing  such  fact, 
may  make  a  will  in  the  same  manner  and  to 
the  same  effect  as  if  sole,  and  by  such  a  will 
or  by  a  deed  executed  without  her  husband's 
consent  dispose  of  all  her  estate,  both  real 
and  personal.  In  the  States  of  Wisconsin 
and  Maryland  a  married  woman  aged  eigh- 
teen years  may  make  a  w^ill,  although  not  of 
age  until  twenty-one  years. 


MARRIED  WOMEN  AS  SOLE 
TRADERS 

THERE  is  in  many  of  the  States  a  certain 
process  by  which  a  married  woman  can 
become  a  sole  trader,  as  it  is  called,  and  carry 
on  a  business  entirely  apart  from  her  hus- 
band. She  is  then  called  a  sole  trader  in  the 
States  of  Pennsylvania,  California,  Idaho, 
and  Montana,  a  free  trader  in  North  Caro- 
lina and  Georgia,  a  free  dealer  in  Florida, 
and  a  public  merchant  in  Louisiana. 

In  several  of  the  States  some  of  these  privi- 
leges are  extended  to  her  without  formalities 
of  any  kind.  Thus,  a  woman  ma}^  carry  on 
any  business  or  trade  or  perform  any  labor 
or  services  in  her  sole  and  separate  account, 
and  her  earnings  shall  be  her  sole  and  sepa- 
rate property,  and  may  be  used  and  invested 
by  her  in  her  own  name,  by  the  laws  of  New 
York,  Indiana,  Kansas,  Nebraska,  Virginia, 
West  Virginia,  Arkansas,  Colorado,  and 
Wyoming.  The  law  in  Vermont  provides 
that  if  a  woman  does  business  in  her  own 
name,  her  earnings,  goods,  and  credits  may 
be  attached  on  trustee  process  or  otherwise, 
and  execution  levied  on  her  separate  goods; 

219 


220  WOMAN   AND   THE   LAW 

and  the  statutes  of  Khode  Island  have  a 
provision  that  when  a  husband  has  been 
insane  for  a  period  of  one  year  the  wife 
may  be  authorized  to  do  business  on  her 
separate  account.  In  North  Carolina  every 
wife  living  a})art  from  her  husband  either 
under  a  judgment  of  divorce,  absolute  or 
limited,  or  under  a  deed  of  separation  exe- 
cuted by  the  husband  and  wife  and  recorded 
in  the  county  where  she  is  resident,  or  when 
her  husband  has  become  an  idiot  or  a  luna- 
tic, is  a  free  trader.  So,  also,  in  North 
Carolina  every  woman  whose  husband  aban- 
dons her  or  maliciously  turns  her  out  of 
doors  is  a  free  trader,  so  far  as  to  be  com- 
petent to  control  and  bind  her  separate  prop- 
erty, but  the  liability  of  the  husband  for  her 
reasonable  support  is  not  thereby  impaired. 
By  the  law  of  Connecticut,  when  a  married 
man  is  sentenced  to  and  is  confined  in  the 
penitentiary,  his  wife,  during  the  period  of 
his  confinement,  may  carry  on  business  as  a 
feme  sole,  and  may  sue  and  be  sued  accord- 
ingly. By  the  law  of  Louisiana,  if  a  wife 
is  a  public  merchant  she  may,  without  re- 
ceiving authority  from  her  husband,  obligate 
herself  in  anything  relating  to  her  trade,  and 
in  such  case  her  husband  is  bound  also,  if 
there  exists  a  community  of  property  between 
them.  The  wife  is  considered  to  be  a  public 
merchant  if  she  carries  on  a  separate  trade, 


MARRIED  WOMEN  AS  SOLE  TRADERS  221 

but  not  if  she  retails  only  the  merchandise 
belonging  to  the  commerce  carried  on  by  her 
husband. 

When  a  married  woman  desires  to  do  busi- 
ness on  her  separate  account  she  is  to  record 
in  the  clerk's  office  of  the  city  or  town  (or, 
in  North  Carolina,  Montana,  and  Arizona,  in 
the  registry  of  deeds)  a  certificate  setting 
forth  the  names  of  herself  and  her  husband 
in  Massachusetts,  North  Carolina,  and  Mon- 
tana, and  the  nature  and  place  of  the  business 
in  Massachusetts,  Montana,  and  Arizona. 
In  Massachusetts  the  husband  may  receive 
such  a  certificate  if  the  wife  does  not.  In 
North  Carolina  no  woman  can  become  a  free 
trader  unless  twenty-one  years  of  age,  and 
the  husband  must  consent  to  and  sign  the 
certificate.  By  the  laws  of  Montana  and  Ari- 
zona no  married  woman  can  become  a  sole 
trader  when  the  capital  originally  invested 
in  her  business  exceeds  the  sum  of  ten  thou- 
sand dollars,  unless  her  declaration  contain 
her  oath  that  the  surplus  in  excess  of  ten 
thousand  dollars  did  not  come  from  any 
funds  of  the  husband.  In  most  of  the  States 
it  is  only  by  petition  to  the  court  that  a  mar- 
ried woman  may  obtain  the  certificate  of  a 
sole  trader. 

In  a  few  of  the  States  not  every  married 
woman  has  the  legal  privilege  of  becoming 
a  sole  trader.    Thus,  in  Pennsylvania  a  mar- 


222  WOMAN  AND  THE  LAW 

ried  woman  can  secure  the  privilege  only 
when  her  husband  is  absent  at  sea.  In  Cali- 
fornia a  married  woman  has  this  right  only 
when  her  husband  fails  to  support  her  or 
when  there  is  ground  for  a  suit  for  divorce. 

Wlien  a  married  woman  has  complied  with 
the  legal  procedure  to  qualify  as  a  sole  trader 
the  husband  is  not  liable  on  her  contracts, 
and  it  is  thus  expressly  stated  in  the  laws  of 
Massachusetts,  New  York,  Pennsylvania,  In- 
diana, Kentucky,  Arkansas,  California,  Ne- 
vada, Idaho,  Montana,  and  Arizona.  In  Cali- 
fornia a  married  woman  as  a  sole  trader  is 
responsible  for  the  maintenance  of  her  chil- 
dren. 

In  North  Carolina  it  is  provided  that  a 
married  woman 's  rights  as  a  sole  trader  may 
be  terminated  by  an  entry  on  the  margin  of 
the  record  or  by  a  publication  for  a  period 
of  three  weeks;  but  such  a  cessation  of  her 
operations  as  a  free  trader  will  not  impair 
the  liabilities  that  she  has  already  incurred 
or  relieve  her  from  the  effects  of  subsequent 
fraud  on  her  part. 

In  connection  with  the  sole  trade  of  a  mar- 
ried woman,  it  is  to  be  noted  that  the  term 
"earnings"  means  what  is  earned  or  gained 
by  labor,  services  or  performances,  wages  or 
reward;  and  the  earnings  secured  to  a  mar- 
ried woman  by  a  statute  are  not  confined  to 
the   results   of  her   manual   labor,   such   as 


MARRIED  WOMEN  AS  SOLE  TRADERS  223 

wages  for  washing  or  sewing,  but  include  the 
products  of  her  trade  also,  if  such  trade  is 
carried  on  with  her  separate  property  used 
as  capital ;  and  the  stock  in  trade  of  a  mar- 
ried woman  owned  at  the  time  of  her  mar- 
riage, or  afterward  bought  with  her  earnings, 
is  included  in  the  term  "earnings." 

The  phrase  ' '  trade  and  business ' '  means  an 
employment  to  the  carrying  on  of  which  the 
woman  devotes  a  considerable  portion  of  her 
time,  skill,  and  means.  It  is  a  business  that 
is  continuing  in  its  nature,  and  embraces  a 
series  of  transactions ;  engaging  in  trade  and 
business  means  not  only  trading  in  a  com- 
mercial sense,  but  also  being  engaged  in  the 
employments  which  require  time,  attention, 
and  labor.  So  a  married  woman's  receipt 
and  disbursement  of  her  rents  and  profits, 
though  done  in  a  business  way,  does  not  con- 
stitute her  a  trader.  Nor  is  she  regarded  as 
a  trader  when  she  is  not  acting  generally 
with  the  public,  but  is  simply  taking  care  of 
her  own  property  or  collecting  or  investing 
her  income. 

When  a  married  woman  is  recognized  as  a 
sole  trader  she  is  not  confined  to  any  particu- 
lar trade.  She  may  engage  not  only  in  wash- 
ing, sewing,  dressmaking,  millinery,  in  oper- 
ating a  dairy,  a  boarding-house,  a  grocery 
or  provision  store,  and  in  other  pursuits  spe- 
cially adapted  to  her  sex,  but  she  may  be  a 


224  WOMAN  AND   THE  LAW 

farmer,  a  miller,  an  army  sutler,  a  saloon- 
or  tavern-keeper,  a  clothier,  a  dealer  in  metal 
junk,  she  may  work  a  mine  or  quarry,  or 
carry  on  a  lumber  business.  If,  however, 
her  trade  is  unsuited  to  her,  this  is  a  fact  to 
be  considered  if  her  husband's  creditors  are 
trying  to  show  that  her  business  is  really  his. 
A  married  woman  as  a  sole  trader  may  en- 
gage in  the  professions,  she  may  devote  her- 
self to  literature,  acting,  singing,  and,  in  fact, 
under  a  general  power  to  trade,  she  may  fol- 
low any  legitimate  calling. 

The  trade  of  a  married  woman  is  often 
spoken  of  as  her  "separate  trade,"  but  the 
word  "separate"  used  in  such  a  connection 
refers  now  rather  to  her  legal  status  than  to 
the  mode  in  which  she  trades,  and  it  does  not 
mean  that  she  is  to  trade  alone,  or  that  she 
shall  not  live  with  her  husband  while  carry- 
ing on  her  trade,  and  it  does  not  prevent  her 
from  allowing  him  to  join  in  the  business. 
In  the  States  of  Massachusetts  and  Indiana 
it  has  been  decided,  however,  that  a  sole 
trader  must  keep  her  business  separate  from 
her  husband,  and  that  their  joint  earnings 
are  his  property. 

In  those  States  where  a  married  woman  is 
a  feme  sole  as  to  her  separate  estate  in 
equity,  she  may  use  such  an  estate  in  trade, 
and  the  profits  of  such  trade  are  equitable 
separate  proi)erty  also ;  but  in  such  trade  she 


MARRIED  WOMEN  AS  SOLE  TRADERS  225 

has  no  personal  capacity,  for  equity  recog- 
nizes her  separate  existence  only  with  re- 
spect to  her  property,  and  her  contracts,  made 
in  the  cause  of  her  trade,  can  be  collected 
only  if  they  have  been  property  charged  on 
such  property.  A  husband  cannot  by  his 
own  motion  change  the  personal  status  of  his 
wife  to  enable  her  to  trade  with  the  rights 
and  liabilities  of  a  feme  sole.  He  may,  how- 
ever, allow  her,  as  his  agent,  to  engage  in 
business  and  give  her  the  profits,  or  he  may 
arrange  before  or  after  marriage  that  she 
shall  keep  her  earnings  or  carry  on  business 
for  her  own  use,  and  give  her,  if  he  choose, 
the  necessary  capital  to  start  with.  While 
any  such  gift  by  a  husband  to  his  wife  of 
earnings,  profit,  or  property  is  good  against 
himself  and  his  heirs,  it  is  not  good  against 
his  creditors,  unless  made  for  a  valuable  con- 
sideration. If  the  consent  of  the  husband  to 
the  business  conducted  by  his  wife  is  a  mere 
oral  assent,  and  without  consideration,  al- 
though he  cannot  ask  back  profits  that  have 
been  already  made  and  collected  by  her,  he 
can  revoke  his  consent  and  claim  the  business 
as  his  own.  In  all  cases  where  the  wife  car- 
ries on  a  business  by  the  mere  assent  of  the 
husband,  the  business  is  his,  and  he  is  liable 
for  its  debts  and  may  claim  its  profits. 
Whether  a  business  is  the  husband's  or  the 
wife's  is  a  question  of  fact.     If  a  wife  has 

15 


226  WOMAN  AND  THE  LAW 

engaged  in  business  without  the  authority  of 
law,  and  without  her  husband's  assent,  he 
cannot  be  held  liable  for  its  debts,  nor  can 
she  in  her  mere  personal  contracts.  If  all 
the  credit  is  given  to  her,  her  husband  is  not 
liable,  whether  she  or  her  property  is  liable 
or  not. 

The  various  statutes  that  have  been  passed 
with  reference  to  the  separate  property  of 
married  women  do  not  by  implication  de- 
stroy the  right  of  the  husband  at  common 
law  to  the  earnings  of  his  wife,  but  they  do, 
as  a  rule,  expressly  or  by  implication,  secure 
to  the  wife  the  natural  increase  of  her  prop- 
erty, and  since  such  increase  belongs  to  her, 
even  when  largely  due  to  the  efforts  of  her 
husband,  it  would  seem  reasonable  that  her 
own  services,  though  these  belong  to  her  hus- 
band, should  not  injuriously  affect  her  rights. 

Under  a  statute  which  enables  a  married 
woman  to  trade  with  a  capital  of  one  thou- 
sand dollars  or  less,  and  creates  a  special 
remedy  against  her  property  for  her  trade 
debts,  it  has  been  decided  that  she  has  no 
powers  that  are  not  expressly  given,  and  that 
the  naming  of  one  mode  of  trade  is  a  denial 
of  all  other  modes.  Under  statutes  which 
enable  a  married  woman  to  trade,  and  which 
do  not  limit  her  capacities,  she  may  trade 
precisely  as  if  she  were  unmarried,  and  may 
do  all  things  that  are  usual  and  proper  in 
the  particular  trade  in  which  she  is  engaged. 


MARRIED  WOMEN  AS  SOLE  TRADERS  227 

It  has  been  said  that  the  object  of  these  stat- 
utes is  not  only  to  do  justice  to  wives,  but 
also  to  encourage  trade. 

The  business  creditors  of  a  married  woman 
have,  under  the  statutes  generally,  the  same 
rights  as  if  she  were  sole  —they  may  sue  her 
alone  and  obtain  a  general  judgment  against 
her.  If  she  is  a  partner,  all  the  partners  must 
be  joined. 

At  common  law,  when  a  man  married  a 
woman  engaged  in  trade  he  took  the  business, 
with  its  assets  and  liabilities ;  but  at  the  pres- 
ent time,  under  the  various  statutes,  he  is 
liable  only  where  he  is  still  liable  for  her 
antenuptial  debts,  and  has  a  right  to  the 
business  only  when  such  property  is  not  se- 
cured to  the  wife  by  settlement  or  by  statute. 


WOMEN  AND   THE   HOMESTEAD 
LAWS 

AS  tlie  homestead  laws  of  the  American 
/\  States  have  been  enacted  with  the 
avowed  object  of  protecting  the  family,  they 
are  a  matter  of  interest  to  women. 

A  homestead  is  the  house  and  land  that 
constitute  a  family  residence,  and  in  the  eyes 
of  the  law  it  is  such  a  family  residence  ex- 
empt from  enforced  sale.  The  extent  of  the 
exemption  from  forced  sale  varies  in  the  dif- 
ferent States  under  their  statutory  law,  but 
as  a  legal  term  "homestead"  implies  some 
degree  of  exemption  in  all  of  the  States. 

Sixteen  States  have  by  their  constitutions 
made  provision  for  the  homestead  exemp- 
tion ;  such  States  are  Illinois,  Michigan,  Kan- 
sas, Virginia,  West  Virginia,  North  Carolina, 
Tennessee,  Arkansas,  Texas,  California,  Ne- 
vada, Colorado,  South  Carolina,  Georgia, 
Alabama,  and  Florida.  In  the  constitutions 
of  the  States  of  Illinois  and  Colorado  there 
are  provisions  that  the  legislature  shall  pass 
liberal  homestead  laws. 

In  South  Carolina  it  is  provided  that  a 
reasonable  amount  of  property,  as  a  liome- 

228 


WOMEN  AND  THE  HOMESTEAD  LAWS  229 

stead,  shall  be  exempt  from  seizure  or  sale 
for  debts.  In  Michigan  the  constitution  i)ro- 
vides  that  every  homestead,  if  not  exceeding 
forty  acres  of  land  and  the  dwelling-house 
thereon,  and  the  appurtenances  to  be  selected 
by  the  owner  tliereof,  and  not  included  in 
any  town;  or  instead  thereof,  at  the  option 
of  the  owner,  any  lot  in  any  city,  village,  or 
recorded  town  plot,  or  such  parts  of  lots  as 
shall  be  equal  thereto,  and  the  dwelling- 
house  thereon  and  its  appurtenances,  owned 
and  occupied  by  any  resident  of  the  State, 
not  exceeding  in  value  fifteen  hundred  dol- 
lars, shall  be  exempt  from  sale  under  legal 
process.  The  constitution  of  the  State  of 
Kansas  provides  that  a  homestead  to  the  ex- 
tent of  one  hundred  and  sixty  acres  of  farm- 
ing land,  or  one  acre  in  a  town  or  city,  occu- 
pied as  a  residence  by  the  family  of  the 
owner,  with  all  improvements,  shall  be  so 
exempt.  In  North  Carolina  it  is  provided 
that  every  homestead  and  its  buildings, 
owned  and  occupied  by  a  resident  of  the 
State,  not  exceeding  one  thousand  dollars  in 
value,  shall  be  so  exempt;  and  in  Virginia 
that  every  householder  or  head  of  a  family 
shall  be  entitled,  in  addition,  to  the  articles 
exempt  by  law  from  levy  or  distress  for  rent, 
to  hold  exempt  his  real  or  j^ersonal  property 
to  the  value  of  two  thousand  dollars,  to  be 
selected  by  him. 


230  WOMAN  AND   THE  LAW 

Tu  the  States  of  Tennessee,  West  Virginia, 
and  South  Carolina  a  homestead,  in  the  pos- 
session of  each  head  of  a  family,  and,  in  the 
town,  to  the  value  in  all  of  one  thousand  dol- 
lars, is  exempt.  In  Alabama  every  home- 
stead not  exceeding  eighty  acres  in  extent, 
with  improvements  to  be  selected  by  the 
owner,  or,  in  a  town,  any  lot  with  improve- 
ments, not  in  all  exceeding  two  thousand  dol- 
lars in  value,  owned  and  occupied  by  a 
resident,  is  exempt.  In  Georgia  there  is  ex- 
emption from  levy  and  sale  of  the  property 
of  every  head  of  a  family,  or  guardian  or 
trustee  of  a  family  of  minor  children,  or  any 
aged  or  infirm  person  or  persons  having  the 
care  or  support  of  dependent  females  of  any 
age,  who  is  not  the  head  of  a  family,  real 
property  or  personal  property,  or  both,  to 
the  aggregate  value  of  sixteen  hundred  dol- 
lars. In  Florida  a  homestead  to  the  extent 
of  one  hundred  and  sixty  acres  of  land,  or 
half  an  acre  in  a  town,  and  the  improvements 
thereon,  owned  by  a  head  of  a  family  resid- 
ing in  the  State,  is  exempt. 

In  Louisiana  every  head  of  a  family,  or 
})erson  having  a  mother  or  father  or  per- 
son or  persons  dependent  on  him  for  sup- 
port, has  exem})t  the  homestead  bona  fide 
owned  by  the  debtor  and  occupied  l)y  him, 
consisting  of  lands,  buildings,  and  appurte- 
nances, whether  rural  or  urban;  also   one 


WOMEN  AND  THE  HOMESTEAD  LAWS  231 

work-horse,  one  wagon,  one  yoke  of  oxen,  two 
cows  and  calves,  twenty-five  head  of  hogs,  or 
one  thousand  pounds  of  bacon  or  its  equiva- 
lent in  pork,  and,  in  a  farm,  the  necessaiy 
corn  and  fodder  for  a  year,  and  farming  im- 
plements to  the  value  of  two  thousand  dol- 
lars ;  if  the  homestead  exceeds  two  thousand 
dollars  in  value,  the  beneficiary  is  entitled  to 
that  amount  in  case  a  sale  of  the  homestead 
under  legal  process  realizes  more  than  that 
sum;  but  no  husband  is  entitled  to  a  home- 
stead whose  wife  is  in  the  actual  enjoyment 
of  property  to  the  value  of  two  thousand 
dollars. 

By  the  constitutions  of  Michigan,  Vir- 
ginia, Nevada,  and  Alabama,  a  homestead 
exemption  does  not  avail  as  against  any 
mortgage  or  pledge  that  is  lawfully  obtained. 
Nor,  as  a  general  rule,  does  a  homestead  ex- 
emption avail  against  any  obligation  or  debt 
contracted  for  the  purchase  of  the  property, 
nor  against  a  sale  for  taxes. 

In  the  States  of  Michigan,  Kansas,  North 
Carolina,  Tennessee,  Texas,  Nevada,  Ala- 
bama, and  Florida  a  homestead  cannot  be 
alienated  or  mortgaged  without  the  joint  con- 
sent of  husband  and  wife. 

In  the  seven  States  of  Michigan,  North  Car- 
olina, Tennessee,  Arkansas,  West  Virginia, 
Alabama,  and  Louisiana  by  constitution  the 
homestead  estate  continues  exempt  from  the 


232  WOMAN  AND   THE  LAW 

owner's  debts  after  his  death  during  the 
minority  of  any  of  his  children.  So  it  would 
seem  to  be  implied  in  Texas,  where  the  con- 
stitution provides  "that  in  the  death  of  the 
husband,  wife,  or  both,  the  homestead  de- 
scends and  rests  like  other  real  property  of 
the  deceased,  and  shall  be  governed  by  the 
same  laws  of  descent  and  distribution,  but 
shall  not  be  partitioned  among  the  heirs  of 
the  deceased  during  the  lifetime  of  the  hus- 
band or  widow  or  as  long  as  he  or  she  occupy 
or  use  the  same  as  a  homestead,  or  the  guar- 
dian of  a  minor  child  be  permitted  so  to  do 
by  order  of  court." 

The  States  of  Michigan  and  North  Caro- 
lina provide  by  constitution  that  the  home- 
stead exemption  continues  during  the  life 
and  widowhood  of  the  widow,  unless  she  be 
the  owner  of  a  homestead  in  her  own  right. 
The  States  of  Tennessee,  Alabama,  and  Loui- 
siana provide  in  general  terms  that  the  home- 
stead shall  inure  to  the  benefit  of  the  widow. 
So  in  Arkansas,  during  her  natural  life 
(whether  she  marry  or  not),  unless  she  be  the 
owner  of  a  homestead  in  her  own  right.  It 
is  declared  in  Vermont  that  a  mechanic's 
lien  may  attach  to  property  held  as  a  home- 
stead; but  in  Texas,  in  such  a  case,  to  fix  a 
lien  there  must  be  a  written  contract,  signed 
by  husband  and  wife  and  acknowledged  by 
her,  as  in  the  case  of  the  sale  of  a  homestead. 


WOMEN  AND  THE  HOMESTEAD  LAWS  233 

In  case  of  a  divorce  in  the  Dakotas,  the 
court  rendering  the  decree  may  assign  the 
homestead  to  the  innocent  party,  either  abso- 
lutely or  for  a  limited  period,  according  to 
the  facts  of  the  case.  In  California,  in  such 
a  case,  if  a  homestead  has  been  selected  from 
the  community  property  it  may  be  assigned 
to  the  innocent  party,  either  absolutely  or  for 
a  limited  period,  or  it  may  be  divided,  or 
sold  and  the  proceeds  divided.  If  it  has  been 
selected  from  the  separate  property  of  either 
party,  it  shall  be  assigned  to  the  former 
owner  of  such  property,  subject,  nevertheless, 
to  the  power  of  the  court  to  assign  it  for  a 
limited  period  to  the  innocent  party.  In  Vir- 
ginia, if  the  wife  obtains  the  decree  of  di- 
vorce for  fault  of  the  husband,  the  homestead 
is  decreed  to  her  and  the  minor  children  as 
if  the  former  husband  was  dead. 


Pakt  III 

PUBLIC    KEL.1TI0XS 


CITIZEN  WOMEN 

A  CITIZEN  woman  is  either  a  native  born 
_or  a  naturalized  member  of  the  State 
who  is  entitled  to  full  protection  in  the  exer- 
cise and  enjoyment  of  private  rights.  Any 
woman  born  in  the  United  States,  or  one 
born  out  of  the  same  who  has  been  natural- 
ized, who  has  not  lost  her  right  as  such,  is  a 
citizen.  Natural  citizenship  is  created  by 
birth  within  the  jurisdiction  of  the  United 
States.  An  Act  of  Congress  of  Februarys  10, 
1885,  provides  that  if  any  woman  who  might 
be  lawfully  naturalized  under  the  existing 
laws  should  marry  or  should  be  married  to  a 
citizen  of  the  United  States,  she  shall  be 
deemed  and  taken  to  be  a  citizen.  This  act 
is  construed  liberally  to  mean  that  the  hus- 
band need  not  be  a  citizen  at  the  time  of  the 
marriage,  but  that  any  free  woman  already 
married  to  an  alien  becomes  a  citizen  by 
the  naturalization  of  her  husband.  Indian 
women,  born  members  of  any  of  the  Indian 
tribes  within  the  United  States  which  still 
maintain  their  tribal  relations,  are  not  citi- 
zens.   They  are  not  citizens  even  if  they  have 

237 


238  WOMAN  AND  THE  LAW 

separated  themselves  from  their  tribe  and 
reside  among  the  white  citizens  of  the  State 
but  have  not  been  naturalized  or  taxed  or 
recognized  as  citizens  by  the  United  States 
or  by  any  of  the  States. 

The  Congress  has  the  exclusive  power  to 
establish  uniform  rules  of  naturalization.  It 
is  competent,  however,  for  the  Congress, 
after  establishing  uniform  rules,  to  give  to 
the  State  courts  jurisdiction  under  them. 
The  provisions  of  the  United  States  statutes 
as  applied  to  women  are  that  any  alien,  ex- 
cept Chinese,  may  be  naturalized  and  become 
a  citizen  of  the  United  States  on  the  follow- 
ing conditions: 

First.  The  applicant  shall  declare  by  oath 
or  affirmation  before  some  State  court  of  rec- 
ord, or  before  a  United  States  district  or  cir- 
cuit court,  or  before  a  clerk  of  any  such 
court,  two  years  at  least  before  her  admis- 
sion, that  it  is  her  intention  to  become  a  citi- 
zen of  the  United  States,  and  to  renounce 
forever  her  allegiance  to  her  own  sovereignty, 
which  must  be  at  peace  with  the  United 
States  at  the  time. 

Second.  At  her  final  admission  to  citizen- 
ship she  shall  declare  on  oath  or  affirmation 
before  one  of  the  courts  mentioned  that  she 
will  support  the  Constitution  of  the  United 
States,  and  that  she  renounces  all  allegiance 
to  any  foreign  sovereign,  and  especially  to 


CITIZEN  WOMEN  239 

her  own,  whereof  she  was  a  subject  before 
her  application  for  citizenship. 

Third.  She  must  prove  by  at  least  two  wit- 
nesses, who  are  citizens,  that  she  has  resided 
within  the  United  States  for  a  period  of  five 
years  at  least,  and  within  the  State  or  Ter- 
ritory where  the  court  is  located  for  at  least 
one  year ;  that  during  that  time  she  has  been 
a  good  moral  person,  attached  to  the  prin- 
ciples of  this  government,  and  is  well  dis- 
posed in  this  regard. 

Fourth.  She  must  also  renounce  all  titles 
to  nobility,  if  she  has  any. 

Fifth.  Any  alien  woman,  except  a  Chinese, 
who  is  a  minor  and  who  shall  have  resided 
within  the  United  States  three  years  next 
preceding  her  arriving  at  her  majority,  and 
who  shall  continue  to  reside  therein  to  the 
time  of  making  application  for  citizenship, 
may,  after  reaching  her  majority,  and  having 
resided  in  the  United  States  at  least  five 
years,  including  the  three  years  of  her  minor- 
ity, be  given  citizenship  without  any  prelim- 
inary declaration. 

Sixth.  The  children  of  parents  duly  natu- 
ralized, being  under  the  age  of  twenty-one 
years  at  the  time  of  such  naturalization,  shall, 
if  residing  in  the  United  States,  be  consid- 
ered as  citizens. 

Seventh.  No  alien  woman  who  shall  be  a 
citizen  or  subject  of  any  country,  state,  or 


240  WOMAN  AND   THE  LAW 

sovereign  with  whom  the  United  States  shall 
be  at  war  at  the  time  of  her  application  shall 
be  then  admitted  to  be  a  citizen  of  the  United 
States. 

A  woman  born  within  the  dominion  and 
jurisdiction  of  the  United  States  of  Chinese 
parents  is  a  citizen,  but  no  alien  Chinese 
woman  can  become  a  naturalized  citizen  of 
the  United  States. 

If  the  several  States  of  the  Union  see  fit 
to  exercise  the  power  of  naturalization  as  an 
original  power,  they  must  comply  with  the 
rules  laid  down  by  Congress.  No  State  can 
make  or  enforce  any  law  which  abridges  the 
privileges  or  immunities  of  citizens  of  the 
United  States. 

Every  woman  citizen  of  the  United  States 
is  capable  of  acquiring  and  holding  title  to 
land  by  purchase,  provided  that  she  is  under 
no  disability  so  that  she  cannot  contract,  and 
all  citizens  may  take  by  descent  or  devise. 
An  alien,  man  or  woman,  cannot  under  the 
common-law  rule  acquire  title  to  real  prop- 
ertj^  by  descent  or  by  other  mere  operation 
of  law.  But  this  common-law  rule  as  to 
aliens  has  been  greatly  modified  or  abolished 
by  several  States. 


ALIEN  WOMEN 

THE  following  is  a  summary  of  the  vari- 
ous statutes  as  to  an  alien  taking  by 

purchase  or  descent  and  passing  on  by  inher- 
itance as  a  native  citizen: 

Alabama.— A  resident  alien  is  placed  on  the 
same  footing  as  a  citizen. 

Arkansas.— Resident  aliens  have  been  given 
the  same  rights  as  to  real  property  as  citi- 
zens. 

California.— All  the  restrictions  have  been 
removed,  except  that  an  alien,  man  or 
woman,  must  make  his  claim  of  property 
within  five  years  of  the  accrue  of  his  title. 

Colorado.— Aliens  have  been  given  the  same 
rights  as  citizens  as  to  real  property. 

Connecticut.— Resident  aliens  are  given  the 
same  property  rights  as  citizens. 

The  Dakotas.— There  are  no  restrictions  as 
to  property  rights. 

Delaware.— There  are  no  restrictions  as  to 
resident  aliens  who  have  made  the  pre- 
liminary declaration  of  intention. 

District  op  Columbia.— An  alien  may  in- 
herit from  a  natural  citizen  such  lands  as 

16  241 


242  WOMAN  AND   THE  LAW 

she  has  acquired  by  deed  or  will  before 
naturalization. 

Florida.— No  property  restrictions  are  im- 
posed upon  aliens. 

Geoegta.— Aliens,  except  alien  enemies,  have 
all  the  rights  of  citizens  as  to  real  property. 

Illinois.  — There  are  no  property  restric- 
tions, aliens  being  placed  on  an  equal  foot- 
ing with  citizens. 

Indiana.— An  alien  can  acquire  title  to  land 
by  descent  or  devise.  If  a  non-resident,  she 
can  hold  land  acquired  by  descent  five 
years  after  the  settlement  of  the  inheritable 
estate. 

Iowa.— Aliens  may  acquire,  inherit,  hold, 
and  dispose  of  real  or  personal  property, 
and  all  distinctions  between  aliens  and 
citizens  in  this  respect  are  abolished. 

Kansas.— Aliens  have  the  same  property 
rights  as  citizens. 

Kentucky.— Aliens  who  are  not  enemies, 
after  the  preliminary^  oath  of  citizenship, 
hold  property  as  citizens  do. 

Louisiana.— There  is  no  law  forbidding 
aliens  holding  and  transmitting  real  estate. 

Maine.— No  restrictions. 

Maryland.- No  restrictions,  except  to  alien 
enemies. 

Massachusetts.— Aliens  may  take,  hold,  and 
transmit  real  estate  as  citizens. 

Michigan.— Aliens  have  the  same  rights  to 
realty  as  citizens. 


ALIEN  WOMEN  243 

Minnesota.— An  alien  has  the  same  rights 
as  a  citizen  to  real  property. 

Mississippi.— There  are  no  restrictions  upon 
aliens. 

Missouri.- There  are  no  restrictions  upon 
aliens. 

Montana.— There  is  no  law  on  the  subject. 

Nebraska.— There  is  no  distinction  between 
aliens  and  citizens. 

Nevada.— There  are  no  restrictions,  except  as 
to  the  Chinese. 

New  Hampshire.— There  are  no  restrictions 
as  to  resident  aliens. 

New  Jersey.  — No  restrictions  upon  alien 
friends. 

New  Mexico.— There  are  no  restrictions. 

New  York.— By  a  law  of  1896  (Chapter 
547)  an  alien  may,  after  filing  in  the  office 
of  the  Secretary  of  State  a  deposition  of 
his  intention  of  becoming  a  citizen  of  the 
United  States  for  a  term  of  six  years,  take, 
hold,  convey,  and  devise  real  property.  If 
he  dies  within  the  six  years,  and  before  he 
is  admitted  to  citizenship,  his  widow  is  en- 
titled to  dower  in  his  real  property.  The 
right,  title,  or  interest  in  or  to  real  prop- 
erty of  any  person  cannot  be  questioned 
or  impeached  by  reason  of  the  alienage  of 
any  person  through  whom  such  title  may 
have  been  derived. 

North  Carolina.— There  are  no  restrictions 
upon  aliens. 


244  WOMAN   AND   THE  LAW 

Ohio.— An  alien  can  inherit  and  transmit  as 
a  citizen. 

Oregon.— No  restrictions  are  imposed. 

Pennsylvania.— Aliens,  except  enemies,  may 
purchase  land  not  exceeding  five  thousand 
acres,  nor  in  net  annual  income  twenty 
thousand  dollars,  the  same  as  citizens. 
Aliens  may  take  and  hold,  without  limit, 
real  property  acquired  by  devise  or  de- 
scent. Titles  that  were  derived  through 
aliens  prior  to  April  26,  1869,  were  con- 
firmed by  an  act  of  that  date. 

Rhode  Island.— There  are  no  restrictions  as 
to  aliens  holding  real  property. 

South  Caeolina.— There  is  no  restriction  be- 
tween citizens  and  aliens  as  to  the  pur- 
chase, enjoyment,  or  descent  of  property. 

Tennessee.— Aliens  have  the  same  rights  as 
citizens. 

Texas.— Aliens  may  take  and  hold  real  or 
personal  property  by  devise  or  descent  in 
the  same  manner  in  which  citizens  of  the 
United  States  may  take  and  hold  real  or 
personal  property  by  devise  or  descent 
within  the  country  of  such  aliens. 

Utah.— Aliens  who  are  residents  take  by  de- 
scent and  inherit  as  citizens.  An  alien 
who  is  a  non-resident  must  claim  an  inher- 
itance in  the  estate  of  the  deceased  within 
five  years  after  the  death  of  the  person 
from  whom  she  claims  succession. 


ALIEN  WOMEN  245 

Veemont.  — There  are  no  restrictions  upon 
aliens  holding  real  property,  nor  any  law 
for  the  forfeiture  of  alien  estates. 

Virginia.— Aliens,  except  enemies,  have  the 
same  property  rights  as  citizens. 

Washington.— All  aliens,  except  Chinese, 
have  the  same  property  rights  as  citizens. 

West  Virginia.— Aliens,  except  enemies, 
have  the  same  property  rights  as  citizens. 

Wisconsin.— No  restrictions  upon  aliens  as 
to  property  rights. 


WOMAN  SUFFRAGE 

AT  the  present  time  the  full  or  partial  suf- 
r\  I'rage  is  extended  to  women  in  twenty- 
six  of  the  States  of  the  Union  and  in  two  of 
the  Territories.  These  States  are  Colorado, 
Connecticut,  Delaware,  Idaho,  Illinois,  Iowa, 
Kansas,  Kentucky,  Louisiana,  Massachusetts, 
Michigan,  Minnesota,  Mississippi,  Montana, 
Nebraska,  New  Hampshire,  New  Jersey,  New 
York,  North  Dakota,  Ohio,  Oregon,  South 
Dakota,  Utah,  Vermont,  Wisconsin,  and  Wyo- 
ming. The  two  Territories  are  Arizona  and 
Oklahoma. 

In  four  of  these  States— Colorado,  Idaho, 
Utah,  and  Wyoming— the  suffrage  is  com- 
plete, women  being  able  to  vote  for  all  public 
offices  and  ujion  all  public  questions  upon 
which  men  may  vote,  and  the  qualifications 
are  the  same  for  women  as  for  men. 

By  far  the  most  common  of  all  the  combi- 
nations of  partial  suffrage  is  that  which  per- 
tains to  the  election  of  public-school  officials. 
The  "school  suffrage,"  as  it  is  called,  is  now 
given  to  women  in  all  of  the  States  men- 
tioned, with  the  exception  of  the  State  of 
Mississippi,  to  a  greater  or  less  extent.    In 

246 


WOMAN  SUFFRAGE  247 

all  of  the  States  and  Territories  mentioned, 
with  the  exception  of  Mississippi,  women 
may  vote  for  school  trustees  or  directors 
whenever  such  officers  are  elective.  There 
are,  however,  some  qualifications.  In  Ari- 
zona a  woman,  to  be  entitled  so  to  vote,  must 
pay  taxes  or  be  the  mother  or  guardian  of 
children  of  school  age.  In  the  States  of 
Connecticut  and  Massachusetts  there  is  the 
same  educational  qualifications  for  women 
as  for  men.  In  the  States  of  Delaware,  Ore- 
gon, and  Vermont  there  is  a  propertj^  quali- 
fication. In  the  State  of  Kentucky  women 
with  children  of  school  age  may  vote  for 
school  trustees,  and  widows  and  spinsters 
who  pay  taxes  may  vote  on  school  taxes  in 
the  country  districts.  In  the  three  second- 
class  cities  of  the  State  women  can  hold 
school  offices  and  vote  on  the  same  tenns  as 
men.  In  the  States  of  Minnesota,  New  York, 
and  North  Dakota  women  may  vote  for  the 
county  superintendent  of  schools,  with  the 
same  qualifications  as  men.  In  the  State  of 
North  Dakota  women  may  vote  for  the  State 
superintendent  of  schools. 

In  the  States  of  Colorado,  Idaho,  Kansas, 
Kentucky,  Louisiana,  Michigan,  Minnesota, 
Nebraska,  New  Jersey,  North  Dakota,  Utah, 
Vermont,  and  Wyoming  women  may  vote  on 
the  question  of  the  issue  of  school  bonds  or 
other  forms  of  school  appropriations. 


248  WOMAN  AND   THE  LAW 

In  the  States  of  Colorado,  Idaho,  Kansas, 
Utah,  and  W^'oming,  in  mnnicipal  elections, 
for  city  officers,  bonds,  public  improvements, 
etc.,  women  may  vote.  Women  may  vote  also 
in  the  States  of  Louisiana  and  Montana  on 
all  questions  of  public  improvements  that  are 
submitted  to  taxpayers. 


WOMEN  AS  ATTORNEYS 

AT  the  common  law,  or  under  the  Constitu- 
x\.  tion  of  the  United  States,  a  woman  has 
no  right  to  practise  law,  and,  except  in  those 
jurisdictions  where  special  statutory  provi- 
sions have  been  made  rendering  her  eligible, 
she  cannot  be  admitted  to  the  bar  as  an  attor- 
ney. Chief-Justice  Gray  of  Massachusetts 
said  in  reference  to  this  matter :  ' '  The  word 
'citizen,'  when  used  in  its  most  common 
and  comprehensive  sense,  doubtless  includes 
women,  but  a  woman  is  not  by  virtue  of  her 
citizenship  vested  by  the  Constitution  of  the 
United  States  or  by  the  constitution  of  the 
commonwealth  with  any  absolute  right  inde- 
l)endent  of  legislation  to  take  part  in  the  gov- 
ernment, either  as  a  voter  or  as  an  officer,  or 
to  be  admitted  to  practice  as  an  attorney. ' ' 

The  legislature  of  a  State  has  the  power  to 
provide  for  the  admission  of  women  to  the 
bar  of  the  State,  but  until  it  makes  such  a 
provision  the  rule  of  the  common  law  will 
prevail.  The  denial  by  a  State  court  of  the 
right  to  practise  law  is  not  an  infringement 
of  any  right  guaranteed  to  women  by  the  Fed- 
eral Constitution  or  by  the  fourteenth  amend- 

249 


250  WOMAN  AND   THE  LAW 

ment.  So  it  was  decided  in  Maryland,  where 
the  statute  provides  that  applications  for  ad- 
mission to  practice  may  be  made  ''for  any 
free,  white  male  citizen  of  Maryland  above 
the  age  of  twenty-one  years."  The  statutes 
authorizing  the  admission  of  attorneys  gener- 
ally provide  that  any  "person"  or  "citi- 
zen" having  certain  prescribed  qualifications 
may  be  admitted  on  application.  The  words 
"person"  and  "citizen"  so  used  do  not  in- 
clude women,  even  though  there  may  be  a 
general  provision  in  the  statute  law  that 
words  importing  the  masculine  gender  shall 
be  construed  to  include  the  feminine. 

In  several  of  the  States  the  rule  in  this 
matter  is  contrary  to  the  general  doctrine, 
and  women  are  held  to  be  admissible  to  prac- 
tice as  attorneys  without  showing  any  spe- 
cific legislative  grant  of  authority.  So  in 
Colorado,  where  the  application  of  a  woman 
for  admission  to  the  bar  was  granted,  al- 
though the  constitution  of  Colorado  provided 
that  "no  person  except  a  qualified  elector 
shall  be  elected  or  appointed  to  any  civil 
office  in  the  State. ' '  The  Connecticut  statute 
provided  that  "the  Superior  Court  may  ad- 
mit and  cause  to  be  sworn  as  attorneys  such 
persons  as  are  qualified  therefor,  agreeably 
to  the  rules  established  by  the  judges  of  the 
said  court."  The  court  held  that  this  lan- 
guage was  broad  enough  to  authorize  the  ad- 


WOMEN  AS  ATTORNEYS  251 

mission  of  womeu,  and  allowed  the  applica- 
tion of  a  petitioner  who  was  a  woman.  So 
in  Indiana  the  courts  have  held  women  to 
be  admissible  to  practice  as  attorneys  even 
where  the  constitution  provides  that  "every 
person  of  good  moral  character,  being  a 
voter,  shall  be  entitled  to  admission  to  prac- 
tice law  in  all  the  courts  of  justice."  In 
Pennsylvania  it  has  been  held  by  a  lower 
court  that  women  may  register  as  law  stu- 
dents, that  a  rule  of  court  providing  that  no 
person  shall  be  registered  as  a  student  of  law 
until  "he"  has  been  examined  and  has  pro- 
duced a  certificate  of  ' '  his ' '  good  moral  char- 
acter, etc.,  does  not  exclude  women,  and  that 
women  may,  under  the  act  of  1834,  be  ad- 
mitted to  practice.  In  New  Hampshire  the 
doctrine  of  the  Colorado  and  Indiana  courts 
is  followed,  and  women  are  held  to  be  eligible. 
In  nearly  all  of  the  States  at  the  present 
time,  either  by  the  rule  of  the  courts  or  by 
the  express  sanction  of  statutes,  women  are 
admitted  to  practice  as  attorneys  in  the  courts 
of  the  State. 


MARRIED  WOMEN  AS  WITNESSES 

IT  is  a  rule  of  the  common  law  that  nei- 
ther a  husband  nor  a  wife  is  a  compe- 
tent witness  in  any  action  or  proceeding, 
either  civil  or  criminal,  to  which  the  other 
is  a  party.  A  reason  for  this  prohibition 
was  found  by  some  of  the  earlier  authorities 
in  the  legal  unity  of  husband  and  wife.  Now, 
generally,  this  rule  is  based  upon  the  ground 
of  common  interest,  which  was  a  disqualifica- 
tion for  a  witness  at  common  law.  B}^  far 
the  strongest  reason,  however,  is  public  pol- 
icy, as  it  is  regarded  as  being  of  first  impor- 
tance to  society  to  preserve  the  privacy  and 
harmony  of  marital  relations.  Mr.  Green- 
leaf  says,  in  his  work  on  evidence:  ''This 
exclusion  is  founded  partly  in  the  identity 
of  their  legal  rights  and  interests,  and  partly 
in  principles  of  public  policy,  which  lie  at 
the  basis  of  civil  society.  For  it  is  essential 
to  the  happiness  of  social  life  that  the  confi- 
dence subsisting  between  husband  and  wife 
should  be  sacredly  cherished  in  its  most  un- 
limited extent." 

This  rule  was  carried  to  the  extent  that 
an  absolute  divorce  did  not  render  either 

252 


MARRIED  WOMEN  AS  WITNESSES  253 

spouse  competent  to  testify  as  to  any  matter 
whicli  transpired  during  the  continuance  of 
the  marriage  relation,  if  such  a  matter  would 
have  been  excluded  had  the  marriage  relation 
continued,  although  after  such  a  divorce 
either  spouse  might  testify  to  any  matter 
which  did  not  violate  the  confidence  of  their 
former  relation.  Nor  did  the  death  of  one 
of  the  spouses  remove  the  seal  of  secrecy 
from  the  lips  of  the  other  in  regard  to  con- 
fidential communications  which  had  taken 
place  between  them.  It  was  an  early  rule  of 
the  English  law  that  neither  a  husband  nor  a 
wife  ought  to  be  permitted  to  give  any  evi- 
dence in  any  form  of  proceeding  which  would 
even  tend  to  charge  the  other  with  the  com- 
mission of  a  crime.  Later  this  rule  was  modi- 
fied so  that  in  collateral  proceedings  which 
did  not  involve  the  mutual  interests  of  hus- 
band and  wife  either  of  them  might  testify 
to  matters  which  merely  tended  to  incrimi- 
nate the  other,  since  neither  the  record  of 
such  a  collateral  proceeding  nor  the  testi- 
mony given  therein  could  afterward  be  used 
as  evidence  in  a  direct  prosecution  against 
the  spouse  of  the  witness.  This  latter  form 
of  the  rule  has  been  generally  adopted  in  the 
United  States,  though  it  would  seem  that  tes- 
timony should  not  be  compelled  if  the  wit- 
ness declines  to  give  it  voluntarily.  AVhere 
a  supposed  marriage  is  void,  the  alleged  hus- 


254  WOMAN   AND   THE  LAW 

band  and  wife  are  competent  witnesses  for 
or  against  each  other,  even  though  they  in 
good  faith  beUeved  themselves  to  have  been 
lawfully  married.  It  has  been  held  that  the 
first  and  lawful  wife  of  a  bigamist  is  not  a 
competent  witness  against  her  husband,  and 
it  has  been  ruled  that  after  prima-facie  proof 
of  a  valid  marriage  the  first  wife  is  not  com- 
petent to  prove  such  marriage  invalid.  But 
after  proof  of  the  first  marriage  the  second 
wife  is  a  competent  witness  to  prove  the  de- 
fendant's marriage  to  her,  because  such  a 
marriage  is  void,  and  she  is  not  his  lawful 
wife.  If,  however,  the  second  marriage  is 
not  disputed,  and  the  question  is  as  to  the 
validity  of  the  first  marriage,  the  alleged  sec- 
ond wife  cannot  be  permitted  as  a  witness, 
because  she  is  prima  facie  the  lawful  wife  of 
the  defendant. 

There  is  an  exception  to  the  rule  that  ex- 
cludes the  testimony  of  spouses  against  each 
other  to  be  found  in  cases  of  personal  out- 
rage committed  by  one  upon  the  other.  In 
all  kinds  of  offenses  that  involve  a  personal 
injury  to  the  wife  or  affecting  her  liberty, 
she  has  always  been  allowed  to  testify  di- 
rectlj^  against  her  husband  as  a  matter  of 
necessity.  And" so  where  the  husband  is  the 
injured  party,  he  is  allowed  to  testify  against 
his  wife,  and  they  are  also  allowed  to  testify 
in  favor  of  each  other.    It  is  only  that  the 


MARRIED  WOMEN  AS  WITNESSES  255 

ends  of  justice  may  be  attained  that  this  re- 
laxation of  the  general  rule  is  made,  and  it 
extends  no  further  than  necessity  requires; 
therefore  the  exception  is  confined  to  cases 
of  personal  violence  endangering  the  bodily 
safetj^  or  liberty  of  the  witness. 

It  is  now  very  generally  provided  through- 
out the  United  States,  by  statute,  that  where 
the  husband  or  the  wife  acts  as  agent  for  the 
other  in  the  course  of  any  business  transac- 
tion, the  one  that  so  acts  may  be  a  witness 
for  the  other  with  reference  to  all  things  that 
have  been  done  or  said  within  the  scope  of 
such  an  agency.  Wherever  a  wife  acts  in  the 
presence  of  her  husband  she  cannot  be  said 
generally  to  act  as  his  agent,  and  her  testi- 
mony is  not,  therefore,  admissible.  The 
proof  of  the  agency  must  in  such  cases  be 
given  as  a  condition  precedent  to  the  admis- 
sion of  the  testimony  of  husband  or  wife,  as 
the  case  may  be,  and  then  such  testimony 
must  be  confined  to  matters  which  properly 
belong  to  such  agency.  Where  a  wife  has 
kept  her  husband 's  business  books  of  original 
entry  she  is  a  competent  witness  for  him 
when  he  sues  on  a  book  account.  But  it  is 
necessary  that  she  has  kept  the  original  en- 
tries, for  if  she  has  only  made  up  books  from 
original  memoranda  made  by  him  from  day 
to  day,  she  is  not  thereby  rendered  a  compe- 
tent witness. 


256  WOMAN  AND   THE   LAW 

There  is  another  and  very  useful  exception 
to  the  rule  excluding  husband  or  wife  from 
the  witness  stand.  It  is  found  in  eases  of 
actions  for  damages  against  railroad  com- 
panies and  other  common  carriers  for  the  loss 
of  luggage.  As  a  wife  very  commonly  packs 
her  husband's  trunks  and  almost  always 
packs  her  own,  and  often  she  alone  fully 
knows  the  contents  of  such  trunks,  her  testi- 
mony is  admitted  as  a  matter  of  necessity. 

In  the  United  States  very  considerable  al- 
terations of  the  rules  of  e^adence  have  been 
made,  ranging  all  the  way  from  slight  modi- 
fications of  the  common-law  rule  to  statutes 
making  husband  and  wife  competent  wit- 
nesses for  and  against  each  other  in  all  judi- 
cial proceedings,  subject  to  the  restriction 
that  they  are  not  permitted  to  testify  to  mat- 
ters which  come  to  their  knowledge  in  the 
confidence  of  the  marriage  relation,  if  objec- 
tion be  made. 


THE  EMPLOYMENT  OF  WOMEN 

A  NOTICEABLE  feature  of  the  social  de- 
.  velopment  of  tlie  latter  half  of  the  nine- 
teenth century  was  the  giving  to  women  a 
larger  freedom  in  the  choice  of  occupation 
and  industrial  vocation.  To  a  considerable 
extent,  this  movement  has  been  reflected  in 
the  laws  of  the  several  States.  The  develop- 
ment of  this  feature  of  the  civil  status  of 
woman  is  seen,  however,  to  be  by  no  means 
uniform,  but  to  depend  upon  local  conditions. 
The  law  relating  to  the  industrial  employ- 
ment of  women  is  developing  along  two  dis- 
tinct lines,  which  may  be  described  as  lines 
of  emancipation  and  limitation. 

The  tendency  to  relieve  woman  from  the 
restraint  which  she  has  labored  under  in 
times  past  in  her  choice  of  industrial  voca- 
tions and  to  place  her  upon  an  even  footing 
with  man  in  this  respect  has  been  general, 
but  has  not  everywhere  found  expression  in 
the  law.  AATiere  such  legal  expressions  have 
been  given,  the  positions  taken  are  not  the 
same.  The  radical  position  in  this  matter 
has  been  taken  by  those  States  which  have 
placed  in  their  constitutional  or  statute  law 

17  257 


258  WOMAN  AND  THE  LAW 

the  bold  declaration  that  sex  shall  constitute 
no  disqualification  for  employment.  The 
States  of  Illinois,  California,  and  Washing- 
ton have  made  such  declarations,  although 
Illinois  and  Washington  have  added  restric- 
tions. The  constitution  of  the  State  of  Cali- 
fornia is  without  proviso  in  this  matter,  and 
declares  simply  that  no  person  shall  on  ac- 
count of  sex  be  disqualified  from  entering  or 
pursuing  any  lawful  business,  vocation,  or 
profession. 

The  law  of  both  Illinois  and  Washington 
contains  provisions  that  are  in  restraint  and 
also  in  relief  of  women.  In  Illinois  it  is  de- 
clared that  no  person  shall  be  precluded  or 
debarred  from  any  occupation,  profession, 
or  employment  (except  military)  on  account 
of  sex,provided  that  this  act  shall  not  be  con- 
strued to  affect  the  eligibility  of  any  person 
to  an  elective  office.  The  same  law  is  also 
in  relief  of  woman,  declaring  that  it  shall 
not  be  construed  as  requiring  any  female 
to  work  on  streets  or  roads  or  to  serve  on 
juries. 

The  State  of  Washington  has  declared  that 
eveiy  avenue  of  employment  shall  be  open 
to  women,  and  that  any  business,  vocation, 
profession,  and  calling  followed  and  pursued 
by  men  may  be  followed  and  pursued  by 
women.  This  law  also  contains  a  provision 
similar  to  that  obtaining  in  the  State  of  Illi- 


THE  EMPLOYMENT  OF  WOMEN    259 

nois,  that  it  shall  not  be  construed  so  as  to 
prevent  women  from  holding  public  office. 

Legislation  in  restriction  of  the  employ- 
ment of  women  is  always  addressed  to  the 
employers  of  labor,  and  in  certain  cases  spe- 
cifies industries  in  which  women  may  not  be 
employed,  but  more  often  limits  the  number 
of  hours  that  shall  constitute  a  legal  work- 
day. 

The  prohibited  industry  is  that  of  mining. 
The  States  of  Alabama,  Colorado,  Illinois, 
Indiana,  Pennsylvania,  Utah,  West  Virginia, 
and  W^yoming  have  so  legislated.  The  States 
of  Alabama  and  Illinois  have  forbidden  the 
work  of  women  in  any  kind  of  mines,  while 
the  States  of  Colorado,  Pennsylvania,  and 
West  Virginia  forbid  the  employment  of 
women  in  coal-mines.  The  State  of  Utah,  by 
its  constitution,  forbids  the  employment  of 
women  in  underground  mines,  and  the  State 
of  Wyoming  forbids  their  employment  in 
coal,  iron,  or  other  dangerous  mines. 

The  limit  set  by  law  upon  the  number  of 
hours  of  labor  for  women  is  either  a  simple 
declaration  that  so  many  hours  shall  consti- 
tute a  legal  work-day  or  a  prohibition  laid 
upon  the  employers  of  women  to  allow  them 
to  work  more  than  a  certain  number  of  hours 
in  a  day  or  week,  under  the  penalty  of  the 
employer  being  found  guilty  of  a  misde- 
meanor.   The  States  of  New  York  and  Mas- 


260  WOMAN  AND   THE  LAW 

sacliusetts  have  developed  the  most  detailed 
mercantile  law  regulating  the  emplojanent  of 
women,  and  the  other  States  are  seen  to  be 
following  in  their  lead. 

Ten  hours  of  labor  is  made  a  legal  work- 
day for  women  in  the  States  of  Connecticut, 
Louisiana,  Maine,  Massachusetts,  Michigan, 
New  Hampshire,  New  York,  North  Dakota, 
Pennsylvania,  Rhode  Island,  South  Dakota, 
and  Virginia,  and  in  the  Territory  of  Okla- 
homa. The  shorter  work-day  of  eight  hours 
has  been  made  legal  in  the  States  of  Illinois 
and  Wisconsin,  while  the  State  of  New  Jer- 
sey has  made  fifty-five  hours  of  labor  in  a 
week,  rendered  between  seven  o'clock  in  the 
morning  and  noon,  and  between  one  o'clock 
and  six  o'clock  in  the  afternoon,  the  legal 
limit. 

Nearly  all  of  the  States  that  have  legislated 
in  this  matter  have  made  exceptions  to  the 
universal  application  of  the  legal  work-day 
to  all  industries.  The  common  exception  is 
farming,  where  no  legal  work-day  is  at- 
tempted. Another  excepted  industry  is  the 
preserving  and  canning  of  perishable  fruit 
and  other  goods  where  the  exigencies  of  the 
season  would  make  a  uniform  work-day  im- 
practicable. 

By  the  New  York  law  the  work-day  for 
women  cannot  begin  before  six  o'clock  in  the 
morning  or  continue  beyond  nine  o'clock  at 
night. 


THE   PROTECTION   OF   WOMEN 

THE  protection  of  the  honor  and  purity 
of  woman  that  is  afforded  by  the  laws  of 
the  several  States  is  not  only  a  feature  of 
her  relation  to  the  body  politic  that  is  of  the 
highest  importance  to  her,  but  is  also  an  ab- 
solutely essential  element  in  the  continuous 
integration  and  elevation  of  society.  So 
while  the  age  at  which  a  female  is  regarded 
as  being  able  to  consent  to  immorality,  and 
the  punishments  that  are  provided  by  the 
State  in  cases  of  the  violation  of  women,  are 
in  their  nature  matters  of  the  criminal  law 
which  lie  outside  of  the  limits  set  for  this 
work,  they  are  so  necessary  in  drawing  a 
general  picture  of  the  legal  condition  of 
American  women  that  in  considering  them 
an  exception  is  rightly  made. 

Our  laws  afford  protection  to  females  both 
by  declaring  an  age  under  which  consent  to 
immorality  on  the  part  of  the  female  cannot 
be  presumed  in  law,  and  by  declaring  the 
violation  of  a  woman  to  be  a  misdemeanor  or 
a  felony,  punishable  with  greater  or  lesser 
penalties.  There  has  been  a  progression  in 
legislation  in  both  of  these  matters,  and,  gen- 

18  261 


262  WOMAN  AND   THE  LAW 

erally  speaking,  while  the  age  of  consent  has 
been  raised  throughout  the  country,  the  pen- 
alty has  been  reduced  from  death  or  impris- 
onment for  life  to  a  more  or  less  limited  term 
of  imprisonment  or  a  fine. 

The  age  under  which  a  girl  or  young 
woman  will  not  be  regarded  by  the  law  as 
having  the  capacity  to  consent  to  a  violation 
of  her  person  ranges  from  seven  years  to 
eighteen  years.  In  the  State  of  Delaware 
the  age  is  fixed  at  seven  years.  In  the  States 
of  Alabama,  Florida,  Georgia,  Mississippi, 
North  Carolina,  and  South  Carolina  the  age 
of  consent  is  placed  at  ten  years.  Twelve 
years  is  the  rule  in  the  States  of  Kentucky, 
Louisiana,  Tennessee,  and  West  Virginia. 
New  Hampshire  has  placed  the  limit  at  thir- 
teen years.  Fourteen  years  is  the  rule  in  the 
States  of  California,  Illinois,  Indiana,  Maine, 
Maryland,  Nevada,  Vermont,  Virginia,  Wis- 
consin, North  Carolina,  and  the  Territory  of 
New  Mexico.  The  two  States  of  Iowa  and 
Texas  have  placed  the  age  of  consent  at  fif- 
teen years.  Sixteen  years  is  the  rule  in  the 
States  of  Arkansas,  Connecticut,  the  District 
of  Columbia,  Massachusetts,  Michigan,  Min- 
nesota, Montana,  New  Jersey,  North  Dakota, 
Ohio,  the  Territory  of  Oklahoma,  Oregon, 
Pennsylvania,  Rhode  Island,  South  Dakota, 
Washington,  and  Tennessee.  The  highest 
age,  that  of  eighteen  years,  is  the  rule  in 


THE  PROTECTION  OF  WOMEN     2G3 

the  Territory  of  Arizona  and  in  the  States 
of  Colorado,  Idaho,  Kansas,  Missouri,  Ne- 
braska, New  York,  Utah,  Wyoming.  The 
crime  of  rape  is  a  misdemeanor  between  the 
ages  of  seven  and  eighteen  in  Delaware,  be- 
tween the  ages  of  ten  and  fourteen  in  North 
Carolina,  and  between  the  ages  of  twelve  and 
sixteen  years  and  one  day  in  Tennessee. 

The  penalties  provided  by  the  statutes  of 
the  various  States  for  the  crime  of  rape  are 
so  varied  that  general  classification  of  the 
States  is  impossible,  and  a  clear  idea  of  the 
condition  of  the  law  in  this  respect  can  be 
had  only  by  considering  the  statutes  of  each 
State  separately.  In  Alabama  the  penalty  is 
death  or  imprisonment  for  life  in  the  peni- 
tentiary, at  the  discretion  of  the  jury.  In 
Arizona  it  is  confinement  in  the  Territorial 
prison  for  life  or  for  a  term  of  years  not 
less  than  five.  Arkansas  provides  imprison- 
ment in  the  penitentiary  for  not  less  than  five 
years  nor  for  more  than  twenty-one  years.  In 
California  the  penalty  is  imprisonment  in  the 
penitentiary  for  not  less  than  five  years,  in 
Colorado  for  not  less  than  one  year  nor  more 
than  twenty  years,  and  in  Connecticut  impris- 
onment for  not  less  than  three  years.  In  Del- 
aware the  penalty  is  death,  but  the  offense  is 
only  a  misdemeanor  between  seven  and  eigh- 
teen years  of  age,  and  the  offender  can  only 
be  fined,  and  for  not  more  than  one  thousand 


264  WOMAN  AND   THE  LAW 

dollars,  or  imprisonment  for  a  term  of  years, 
not  more  than  seven,  or  both  fined  and  im- 
prisoned, in  the  discretion  of  the  court.  The 
law  in  the  District  of  Columbia  provides  for 
the  first  offense  imprisonment  at  hard  labor 
in  the  penitentiary  for  not  more  than  fifteen 
years,  and  for  each  subsequent  offense  not 
more  than  thirty  years.  In  Florida  the  pen- 
alty is  death  or  imprisonment  for  life.  In 
Georgia,  also,  the  penalty  is  death,  unless  the 
defendant  is  recommended  to  mercy  by  the 
jury,  in  which  case  the  punishment  is  hard 
labor  in  the  penitentiary  for  not  less  than 
one  year  nor  longer  than  twenty  years.  Idaho 
provides  imprisonment  for  five  years,  and  this 
may  be  extended  to  life ;  and  Illinois  for  one 
year,  with  the  same  extension.  Indiana  pro- 
vides a  term  of  from  one  to  twenty-one  years, 
and  Iowa  imprisonment  for  life  or  any  term 
of  years.  Kansas  provides  imprisonment  at 
hard  labor  for  from  five  to  twenty-one  years. 
Kentuclcy  inflicts  the  penalty  of  death  or  im- 
prisonment for  life,  at  the  discretion  of  the 
jury.  Louisiana  inflicts  the  penalty  of  death. 
Maine  provides  imprisonment  for  life  or  for 
any  term  of  years.  In  Maryland  the  offen- 
der, at  the  discretion  of  the  court,  suffers 
death  or  imprisonment  in  the  penitentiary 
for  a  definite  period  of  not  less  than  eigh- 
teen months  nor  more  than  twenty-one  years. 
Massachusetts    provides    imprisonment    for 


THE  PROTECTION   OF  WOMEN      265 

life  or  any  term  of  years,  and  Michigan  im- 
prisonment for  life  or  for  any  such  period  as 
the  court  in  its  discretion  shall  direct. 

In  Minnesota,  if  the  child  is  under  ten 
years  the  penalty  is  imprisonment  for  life; 
if  over  ten  and  under  fourteen,  a  term  of 
not  less  than  ten  nor  more  than  thirty  years ; 
if  over  fourteen  and  under  sixteen.  State 
prison  for  not  less  than  one  nor  more  than 
seven  years,  or  imprisonment  in  the  county 
jail  for  not  less  than  three  months  nor  more 
than  one  year.  Mississippi  provides  a  pen- 
alty of  death,  unless  the  jury  decide  upon  im- 
prisonment for  life.  In  Missouri  it  is  imjjris- 
onment  in  the  penitentiary  for  two  years,  or  a 
fine  of  from  one  hundred  to  five  hundred  dol- 
lars, or  imprisonment  in  the  county  jail  for 
from  one  to  six  months,  or  both  such  fine  and 
imprisonment,  at  the  discretion  of  the  court. 
Montana  gives  State  prison  for  not  less  than 
five  years,  Nebraska  for  not  less  than  three 
nor  more  than  twenty  years,  and  Nevada  for 
not  less  than  five  years,  which  may  extend  to 
life.  New  Hampshire  provides  a  term  of  im- 
prisonment not  exceeding  thirty  years.  New 
Jersey  inflicts  a  fine  not  exceeding  one  thou- 
sand dollars,  or  imprisonment  at  hard  labor 
for  any  term  of  years  not  exceeding  fifteen,  or 
both,  and  New  Mexico  a  term  of  not  less  than 
five  nor  more  than  twenty  years.  In  New 
York,  for  the  first  degree,  the  penalty  is  a  term 


266  WOMAN  AND   THE  LAW 

of  not  more  than  twenty  years,  and  for  tlie 
second  degree  not  more  than  ten  years.  North 
Carolina,  if  the  victim  be  under  ten  years, 
the  penalty  of  death;  if  over  ten  and  under 
fourteen,  fine  or  imprisonment  in  the  State 
l^rison,  at  the  discretion  of  the  court,  if  the 
female  was  previously  chaste.  North  Dakota 
provides  for  the  first  degree  a  term  of  not 
less  than  ten  years  and  for  the  second  degree 
not  less  than  five  years,  and  Ohio  provides 
for  a  tenn  of  from  three  to  twenty  years.  In 
Oklahoma,  for  the  first  degree,  when  the  girl 
is  under  fourteen  years,  a  term  of  not  less 
than  ten  years;  for  the  second  degree,  not 
less  than  five  years,  provided  that  the  female 
is  of  previous  chaste  and  virtuous  character. 
Oregon  provides  imprisonment  for  not  less 
than  three  nor  more  than  twenty  years,  and 
j)rior  unchastity  of  the  woman  is  no  defense. 
Pennsylvania  inflicts  a  fine  of  not  over  one 
thousand  dollars  and  imprisonment  by  sepa- 
rate and  solitary  confinement  at  hard  labor, 
or  simple  imprisonment  not  exceeding  fif- 
teen years,  and  Rhode  Island  imprisonment 
for  life  or  for  any  term  not  less  than  ten 
years.  South  Carolina  inflicts  the  death 
penalty,  with  privilege  of  the  jury  to  rec- 
ommend to  mercy,  when  the  penalty  may 
be  reduced  to  imprisonment  at  hard  labor 
for  life.  South  Dakota  gives,  for  the  first 
degree,  a  term  of  not  less  than  ten  years, 


THE  PROTECTION  OF  WOMEN     2G7 

and  for  the  second  degree  not  less  than  five 
years.  In  Tennessee,  if  the  girl  is  under 
twelve  years  the  penalty  is  death  by  hanging 
or,  in  the  discretion  of  the  jury,  a  life  term 
or  not  less  than  ten  years.  The  penalty  in 
Texas  is  death  or  imprisonment  for  not  less 
than  five  years,  in  the  discretion  of  the  jury, 
and  in  Utah  the  same  imprisonment.  Ver- 
mont inflicts  a  term  of  not  more  than  twenty 
years  and  a  fine  of  not  more  than  two  hun- 
dred dollars,  or  either  penalty,  in  the  discre- 
tion of  the  court.  Virginia  inflicts,  in  the  dis- 
cretion of  the  juiy,  the  death  penalty  or 
imprisonment  of  from  five  to  twenty  years, 
and  Washington  imprisonment  for  life  or  any 
term  of  years.  West  Virginia  inflicts  the 
death  penalty  or,  in  the  discretion  of  the 
jury,  imprisonment  for  not  less  than  seven 
nor  more  than  twenty  years.  Wisconsin  in- 
flicts a  term  of  from  five  to  thirty-five  years, 
and  Wyoming  a  term  of  imprisonment  of 
not  less  than  one  year,  which  may  extend 
to  life. 


TABLE  OF  STATUTES 

THE  following  table  of  constitutional  and 
statute  laws  relating  to  the  property 
rights  of  married  women  will  be  found  of 
use  to  those  who  may  desire  to  undertake 
more  detailed  studies  of  this  subject.  This 
table  is  not  exhaustive,  but  it  affords  start- 
ing-points for  the  examination  of  the  laws  of 
each  State. 
ALABAMA.-Code  of  1843 ;  February  28, 1887 ; 

February  18,  1895. 
Aeizona.— Code,  1864-71 ;  Januaiy  22,  1871; 

February  19,  1881. 
Arkansas.  — Constitution  of  1874. 
CALiFOKNiA.-March  9, 1870;  March  21, 1872. 
Colorado.  — November  7,  1861. 
Connecticut.  — 1809;  April  20,  1877. 
Delaware.- April  9,  1873;  March  17,  1875. 
District  of  Columbia.— Code  of  1857;  April 

10,  1869. 
Florida. -February  11,  1881;  Code  of  1891. 
GEORGiA.-Code  of  1882. 
IDAHO.-Code  of  1887. 
Illinois.— March  3,  1845;  February  21  and 

April  24, 1861 ;  March  24,  1869. 

268 


TABLE  OF  STATUTES  2G9 

Indiana.— March   3,    1859;   May   31,    1879; 

April  16  and  September  19,  1881. 
Iowa.- April  14,  1870;  Code  of  1873. 
Kansas.— October  31,  1868. 
Kentucky.— April  11,  1873;  March  15,  1894. 
Louisiana,— Code  of  1889. 
MAiNE.-March  22,  1844;  Code  of  1857. 
Maryland. -June  12,  1860;  May  13,  1882. 
Massachusetts.— May  5,  1855. 
Michigan.— Constitution  of  1850;  February 

13,  1855. 
Minnesota.— March  5  and  June  1,  1869. 
Mississippi.  — Code  of  1880. 
Missouri.— March  25,  1875;  April  17,  1877; 

June  11,  1889. 
Montana.— January  12,  1872;  February  4, 

1874;  March  7,  1887. 
Nebraska. -March  1,  1871;  March  3,  1881. 
Nevada.— February  27  and  March  10,  1873. 
New   Hampshire.— July   4   and   August   1, 

1860;  July  18,  1876. 
New  Jersey. -March  25, 1852 ;  April  2, 1873 ; 

March  27,  1874. 
New  Mexico.— January  12,  1852;  April  2, 

1884. 
New  YoRK.-March  20, 1860;  April  25, 1867; 

Laws  of  1896,  chapter  272. 
North  Carolina.— January  29,  1849;  Feb- 
ruary 12,  1872. 
North  Dakota.— January  12,  1866;  January 

13,  1871. 


270  WOMAN  AND  THE  LAW 

OHio.-Code  of  1835;  Code  of  1880;  March 

19,  1887. 
Oklahoma.— Code  of  1893. 
Oregon.— December   15,   1854;   October  21, 

1878. 
Pennsylvania.— April    11,    1848;    April    3, 

1872. 
Rhode  Island.— January,  1856;  May  26  and 

June  1,  1833. 
South  Carolina.— January  12,  1866;  Janu- 
ary 13,  1871. 
TENNESSEE.-March  2,  1870;  Code  of  1840. 
Utah.— February    16,    1872;    February   18, 

1876;  August  1,  1884. 
Vermont.— November   15,   1847;   November 

26,  1884;  November  19,  1888. 
Virginia. -Code  of  1849;  April  4,  1877. 
Washington.— November  14,  1879. 
West  Virginia.— March  2,  1868;  February 

16,  1883. 
Wisconsin.— February  1,   1850;  March  14, 

1859;  March  25,  1872. 
Wyoming.— December  4,  1869. 


INDEX 


INDEX 


Actions  by  married  women,  185 
Adoption  of  children,  50 
Age  for  valid  marriage,  11,  12 
Alien  women,  241  et  seq. 
Alienation  of  affections,  36 
Alimony,  113 

Attorneys  for  married  women, 
147 

Bigamy,  16 

Ceremony  of  marriage,  19 
Change  of  name  after  divorce, 

116 

Citizen  women,  237 
Civil  contract  of  marriage,  7 
Common-law  marriage,  22 
Consanguinity  and  afi&nlty,  13 
Consent  to  marriage,  18 
Construction  of  statutes,  10 
Contract  to  marry,  3 
Contracts  between  husband  and 

wife,  203 
Contracts  of  married  women, 

200 

Damages  for  breach  of  contract 
to  marry,  6 

Debts  of  wife  before  marriage, 
30 

Deeds  by  married  women,  210 

Dissolution  of  marriage,  17 

Divorce,  55 

Alabama,  55;  Arizona,  56; 
Arkansas,  58;  California,  59; 
Colorado,  60 ;  Connecticut,  01 ; 
Delaware,  62;  District  of  Co- 
lumbia, 63;  Florida,  64;  Geor- 
gia, 64 ;  Idaho,  65 ;  Illinois,  66 ; 
Indiana,  66 ;  Iowa,  67 ;  Kansas, 
68  ;  Kentucky,  69 ;  Louisiana, 
70;  Maine,  71;  Maryland,  72; 
Massachusetts,  73;  Michigan, 
74 ;  Minnesota,  76 ;  Mississippi, 


77 ;  Missouri,  78 ;  Montana,  79 ; 
Nebraska,  80 ;  Nevada,  81 ;  New 
Hampshire,  82;  New  Mexico, 
83;  New  York,  83;  New  Jersey, 
84 ;  North  Carolina,  85 ;  North 
Dakota,  86;  Ohio,  87;  Okla- 
homa, 88 ;  Oregon,  89  :  Penn- 
sylvania, 90 ;  Rhode  Island,  91 ; 
South  Carolina,  93 ;  South  Da- 
kota, 93 ;  Tennessee,  94 ;  Texas, 
95;  Utah,  96;  Vermont,  97; 
Virginia,  98;  Washington,  99; 
West  Virginia,  100;  Wiscon- 
sin, 102;  Wyoming,  103 

Divorces  among  the  Mormons, 
109 

Dotal  property,  Louisiana  law, 
152 

Dower,  128  et  seq. 
Assignment    of    dower,    137; 
barring  of  dower,  132 

Elements  of  valid  marriage,  8, 9 
Employment  of  women,  257 
Encouragement  of  maiTiage,  8 

Former  marriage,  15 

Guardianship  of  children,  45 

Husband  and  wife,  28 

License  for  marriage,  10 
Limited  divorce,  105 
Loss  of  consortium,  36 

Marriage,  7 

Marriage  settlements,  123 

Married  woman's  separate  es- 
tate, 142  et  seq. 

Married  women  as  sole  traders, 
219 

Married  women  as  special  part- 
ners, 147 


273 


274 


INDEX 


Married  women   as   witnesses, 

252 
Mental  capacity,  12 
Miscegenation,  14 

Nullity  suits,  22 

Ownership  of  patents,  149 
Ownership  of  stock,  146 

Paraphernalia,  150 

Plural  marriages  of  the  Mor- 
mons, 24 

Polygamy,  16 

Presumption  of  life,  15 

Prohibited  kinship  in  marriage, 
14 

Proof  of  marriage,  21 

Property    rights     of     married 
women 

Alabama,    159;    Arizona,    160 
Arkansas,  161 ;  California,  162 
Colorado,  163 ;   Delaware,  164 
District    of     Columbia,     165 
Florida,    166;     Georgia,    166 
Idaho,  167;   Illinois,  168;    In- 
diana, 169;  Iowa,  170;  Kansas, 
171 ;    Kentucky,    171 ;    Louisi- 
ana, 172;    Maine,  174;    Mary- 
land, 174;  Massachusetts,  175 
Michigan,  176;  Minnesota,  178 
Mississippi,  178;  Missouri,  179 
Montana,  180  ;  Nebraska,  181 
Nevada,  182  ;  New  Hampshire, 
183;    New  Jersey,   184;    New 
Mexico,  185;    New  York,  185; 
North    Carolina,    186;     North 
Dakota,  187  ;  Ohio,  187 ;  Okla- 


homa, 188 ;  Oregon,  189 ;  Penn- 
sylvania, 190 ;  Rhode  Island, 
190;  South  Carolina,  191; 
South  Dakota,  191 ;  Tennessee, 
192;  Texas,  193;  Utah,  194; 
Vermont,  195;  Virginia,  195; 
Washington,  196;  West  Vir- 
ginia, 197 ;  Wisconsin,  198 ; 
Wyoming,  199 

Prosecution  and  defense  of 
suits,  144 

Protection  of  women,  261 

Record  of  marriage,  21 
Restraint  of  marriage,  8 
Right  of  a  wife  to  support,  40 
et  seq. 

Rules  of  construction  of  stat- 
utes, 206 

Separate  examination  of  a  wife, 
213 
Spanish  law,  16 

Table  of  statutes,  268 

Torts  of  a  personal  nature,  34 

Torts  of  a  wife,  31 

Uniform  divorce  law,  117 

Void  and  voidable  marriages,  17 

WiUs  by  married  women,  217 

Woman  suffrage,  246 

Women    and    the     homestead 

laws,  228 
Women  as  attorneys,  249 


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